STATE OF NEW JERSEY v. LOUIS MCGRATH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS MCGRATH,

Defendant-Appellant.

______________________________

February 21, 2014

 

Submitted February 11, 2014 Decided

 

Before Judges Alvarez and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-72-12.

 

James J. Markham, III, attorney for appellant.

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a trial de novo in the Law Division, defendant appeals from his conviction for refusing to submit to a chemical breath test, N.J.S.A. 39:4-50.2. Defendant argues the conviction should be reversed because the officer read the April 2004 version of the standard statement under N.J.S.A. 39:4-50.2(e), which omitted mention that, if convicted, the court would be required to order installation of an ignition interlock device. N.J.S.A. 39:4-50.4a(a); -50.17(b). Having reviewed defendant's arguments in light of the facts and applicable law, particularly the Supreme Court's decision in State v. O'Driscoll, 215 N.J. 461 (2013), we affirm, but remand for correction of the sentence.

I.

On August 20, 2011, River Edge Borough police patrolman Michael Shouldis issued defendant tickets for driving while under the influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50, and refusing to submit to a chemical breath test, N.J.S.A. 39:4-50.2. Shouldis testified that shortly after 8:30 p.m., he awakened defendant after he found him unresponsive and slumped over the wheel of a braked but running automobile in the drive-through lane of a McDonalds restaurant, between the ordering and pick-up windows. Defendant's eyes were bloodshot and watery; his face was red; and his speech was slightly slurred. Shouldis detected the odor of an alcoholic beverage.

Shouldis administered psychophysical field sobriety tests. After Shouldis concluded that defendant had performed poorly on the tests, Shouldis placed defendant under arrest. Defendant admitted to Shouldis that he had recently consumed four or five beers.

On the way to police headquarters, defendant expressed his awareness that he could be incarcerated if convicted of DUI, given his prior convictions. Shouldis testified, "[Defendant] was saying that he's definitely going away. And I asked him are you going on vacation, and he said, no, he was going to jail because he had a few DWI's already." Shouldis added that at headquarters, defendant said "he didn't want to do any of the testing. He just wanted to go."

At the police station, in the presence of patrolman Joseph Starost, a certified operator of the Alcotest device, Shouldis read to defendant the "New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle," as revised and effective April 26, 2004. The statement does not refer to the imposition of the ignition interlock requirement upon conviction, which was adopted as a mandatory consequence of a refusal conviction in 2010. L. 2009, c. 201, 2, 5 (Jan. 14, 2010). There is no allegation that Shouldis misread the statement. The April 26, 2004, version of the statement was the only one in effect at the time. The Attorney General did not issue a revised statement, incorporating mention of the ignition interlock consequences, until 2012. See N.J. Office of Att'y Gen., Standard Statement for Motor Vehicle Operators (July 1, 2012), available at http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf.1

After Shouldis read the April 2004 version of the statement, defendant stated that he would refuse to submit to the Alcotest. Shouldis then marked "No" in the spaces provided for an arrestee's answer to the question whether he or she will submit breath samples.

Defendant, a construction laborer, testified that he only drank three beers after he completed a concrete project, before 5:30 p.m. He admitted telling Shouldis he drank four or five, but claimed he was confused at the time. He asserted that he had been up since early morning, and had worked all day in the summer heat. He testified that he fell asleep at the McDonalds because he was exhausted. A defense expert opined that defendant's physical exhaustion affected his performance on the sobriety tests. The expert also was critical of the manner in which some of them were administered, and challenged the reliability of others.

The municipal court denied defendant's motion to dismiss the refusal charge. The motion was based on the use of the incomplete standard statement. On July 24, 2012, the court found defendant guilty of refusal, but found him not guilty of DUI. After confirming that defendant had three prior convictions for DUI two in 1993 and one in 2003 the court treated defendant as a third-or-subsequent offender. The court suspended defendant's driving privileges for ten years; required that he attend the Intoxicated Driver Resource Center for forty-eight hours; ordered installation of the ignition interlock until one year after restoration of driving privileges; and imposed minimum required monetary fines and penalties. See N.J.S.A. 39:4-50.4a (setting penalties for refusal to submit to breath test); In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431, 436-40 (App. Div. 1980) (Lora, P.J.A.D., dissenting); see also State v. Ciancaglini, 204 N.J. 597, 610 n.10 (2011) (discussing Bergwall).2 Without stating its reasons, the court also stayed the suspension and ignition interlock requirement for twenty-one days.

In his appeal to the Law Division, defendant renewed his argument that the refusal conviction should be set aside. Following a hearing, the Law Division judge rejected the argument, and found defendant guilty anew. The court re-imposed the sentence of the municipal court, except the court did not require an ignition interlock, because "[defendant] was not noticed of any interlock device when the statement was read." The court noted that O'Driscoll was then pending before the Supreme Court. Without setting forth any reasons, the court also stayed its sentence pending appeal.

Defendant presents the following issue in this appeal:

The police did read the mandated statement to the defendant/appellant, but the refusal penalties were not delineated; therefore, the refusal charge should have been dismissed as a matter of law.

 

II.

On this appeal, we do not review the fact-findings of the Law Division, which are generally entitled to our deference. State v. Johnson, 42 N.J. 146, 158-59 (1964). Rather, we review the court's legal determination regarding the impact of correctly reading an incomplete standard statement. Where, as here, the issues turn on purely legal issues, our review is plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995)), certif. denied, 209 N.J. 430 (2012).

A.

To sustain a conviction for refusal under N.J.S.A. 39:4-50.4a(a), the State must prove the following beyond a reasonable doubt:

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.

 

[State v. Marquez, 202 N.J. 485, 503 (2010) (citations omitted).]

 

Defendant argues that the State did not satisfy the third element listed above. Namely, defendant contends that the officer's failure to advise him of the ignition interlock device requirement constituted a failure to provide him with the requisite information regarding the consequences of his refusal. We disagree.

Our Supreme Court in O'Driscoll, supra, recently discussed the closely related issue of an officer's reading of an outdated standard form. After a 2009 arrest, the officer read the January 2004 version of the standard statement, instead of the April 2004 version, which incorporated reference to new penalty enhancements effective April 26, 2004. 215 N.J. at 468-69, 473-74. Those enhancements pertained to the license suspension period, and potential fines. On appeal from the Law Division, which found the inconsistencies immaterial, our court reversed, finding that the standard statement read to defendant "'provided inaccurate information about the penalties he faced,' and 'did not satisfy the statutory mandate' to inform defendant of the consequences of refusal." Id. at 471.

The Supreme Court reversed. The Court held that the error in reading a superseded or outdated standard statement was subject to a materiality test. "Courts should consider whether an error in the reading of the standard statement is material in light of the statutory purpose to inform motorists and impel compliance." Id. at 466. The Court stated that neither Marquez, nor the "language of the implied consent statute . . . require absolute precision." Id. at 476; see also Marquez, supra, 202 N.J. at 503; N.J.S.A. 39:4-50.2(e).

In making the materiality finding, courts must "examine whether a defendant reasonably would have made a different choice and submitted to a breath test had the officer not made an error in reciting the statement. An immaterial variation from the standard form does not require reversal of a conviction for refusal." O'Driscoll, supra, 215 N.J. at 466. Under this approach, "discrepancies that would not have influenced a reasonable driver's choice to submit to a breath test would not" be deemed material and would not warrant reversal. Id. at 477-78. "On the other hand, substantive errors that do not adequately inform motorists of the consequences of refusal and would affect a reasonable person's decision-making would be problematic." Id. at 478. The evaluation of a deviation's materiality "requires a case-by-case evaluation of the facts." Ibid. Considering the facts in O'Driscoll's case, the Court found "the officer's mistakes were inconsequential" and the sentence imposed was within the range recited by the officer. Id. at 478-79.

Applying the foregoing principles to this case, we conclude that the omission of the ignition interlock requirement in the 2004 statement was not material. We are unconvinced that defendant would have likely felt more impelled to give a breath sample if the standard statement Shouldis read had advised defendant that, if convicted, he would be required to install an ignition interlock. Defendant was keenly aware of the much more significant consequence of incarceration if convicted of DUI, given his three prior convictions. His statements while on the way to the station house reflected his sense at the time that incarceration was inevitable. His refusal can only be explained as a means of frustrating the State's ability to establish a DUI violation that carried with it the sanction of incarceration. The ignition interlock requirement would have been, comparatively speaking, a trivial consideration. We therefore affirm the Law Division's judgment of conviction for refusal to submit to a chemical breath test.

B.

We turn briefly to consider two other issues: the Law Division's order striking the ignition interlock requirement; and the stays of defendant's sentence by the municipal court and the Law Division.

The Law Division declined to impose the ignition interlock requirement based on the omission in the standard statement that was read to defendant. We recognize that the State did not file a cross-appeal from that aspect of the sentence. Nonetheless, we retain the inherent power to correct an illegal sentence. State v. Culver, 23 N.J. 495, 504-11, cert. denied, 354 U.S. 925, 77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957). The court may also correct a sentence sua sponte. State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990). The court's corrective power includes the authority to correct an illegally lenient sentence. State v. Sheppard, 125 N.J. Super. 332, 336-37 (App. Div. 1973) (reversing illegal sentence suspending jail term for second DUI conviction, where law required mandatory term of incarceration).

Consistent with the reasoning in O'Driscoll, supra, we do not believe the Legislature intended the statute requiring standard statements to immunize defendants from any consequences omitted from the statement. The statement is designed to assure that an arrestee is generally informed of the consequences of refusal. However, actual knowledge of a consequence is not a precondition to imposing it. See Marquez, supra, 202 N.J. at 513. That is consistent with the general principle that "[i]gnorance of a sentencing provision that is published in the codified laws of this State . . . is not a defense. Every person is presumed to know the law." State v. Moran, 202 N.J. 311, 320 (2010). Once a conviction is obtained, as it was here, then the defendant is subject to the whole range of penalties provided by law. In the case of mandatory consequences, such as the installation of an ignition interlock, the Law Division had no discretion to withhold its imposition.

We also express our concern that both the municipal court and the Law Division stayed defendant's license suspension pending appeal in this matter without providing any statement of reasons. We do not question the authority of either the municipal court, or the Law Division, to stay the imposition of all or part of a sentence. See R. 7:13-2 ("Notwithstanding R. 3:23-5, a sentence or a portion of a sentence may be stayed by the court in which the conviction was had or to which the appeal is taken on such terms as the court deems appropriate."); R. 3:23-5 (stating that pending appeal after the trial de novo, the court may stay a fine, costs, a forfeiture, or probation, and a defendant shall be admitted to bail in accordance with standards set forth in Rule 3:26-1a).

Nonetheless, an application for a stay pending appeal is governed by the three-part standard in Crowe v. De Gioia, 90 N.J. 126 (1982). Garden State Equality v. Dow, 216 N.J. 314, 320 (2013).

A party seeking a stay must demonstrate that (1) relief is needed to prevent irreparable harm; (2) the applicant's claim rests on settled law and has a reasonable probability of succeeding on the merits; and (3) balancing the "relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were."

 

[Ibid. (quoting McNeil v. Legis. Apportionment Comm'n, 176 N.J. 484, 486 (2003) (LaVecchia, J., dissenting)).]

 

In cases of public importance, the public interest must also be weighed. Ibid.

Our drunk driving laws are designed to combat the "senseless havoc and destruction caused by intoxicated drivers." O'Driscoll, supra, 215 N.J. at 472 (internal quotation marks and citation omitted). Our Supreme Court has adopted rules and directives to assure the swift prosecution of those charged, and the swift punishment of those convicted, to further the public goals of traffic safety. See State v. Cahill, 213 N.J. 253, 269-70 (2013). A court should not stay the suspension of driving privileges of a person convicted of DUI or refusal without considering the factors governing the issuance of a stay. Particularly in the case of a recidivist like defendant, the prospects of re-offending during a stay, and the consequent risk to the public, are significant. See State v. Henry, 418 N.J. Super. 481, 494-95 (Law Div. 2010) (noting a National Highway Traffic Safety Administration study's finding that "'each prior DWI conviction increases an offender's recidivism rate by 10 percent per year'").

We appreciate that the loss of a driver's license is a substantial sanction. But, so are sentences of incarceration, or probation after conviction of a crime. Yet, the stay of a sentence imposed for a criminal conviction is hardly automatic. Moreover, as reflected in Rule 7:13-2, a court that determines to impose a stay may do so upon appropriate conditions. For example, if a convicted defendant demonstrates that the loss of driving privileges pending appeal would unavoidably interfere with his or her ability to maintain employment, then the court may consider conditioning the stay, if otherwise warranted, by limiting the defendant's driving to that required by employment. The court may also condition a stay upon the verified installation of an ignition interlock, which would provide some assurance that the defendant would not reoffend pending appeal. We leave it to the discretion of the trial courts imposing stays to develop other appropriate terms or conditions.

In sum, we affirm defendant's conviction. We remand to the Law Division for imposition of the ignition interlock requirement. The stay is vacated. We do not retain jurisdiction.

1 Effective August 24, 2009, the responsibility for the promulgation of standard statements regarding implied consent to chemical breath test statutes was transferred from the Chief Administrator of the Motor Vehicle Commission to the Attorney General. See 41 N.J.R. 2825(a) (Aug. 3, 2009).

2 Had defendant been convicted of DUI, as opposed to refusal, he would have been subject to a term of incarceration between 90 and 180 days. N.J.S.A. 39:4-50(a)(3). See Ciancaglini, supra, 204 N.J. at 607-08 (2011) (contrasting the penalties for violating the refusal statute and the DUI statute).