STATE OF NEW JERSEY v. JENNIFER O'NEILL

NOT FOR PUBLICATION WITHOUT THE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.

JENNIFER O'NEILL,

Defendant-Appellant.

____________________________

April 10, 2014

Argued March 24, 2014 - Decided

Before Judges Parrillo, Harris and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 18-13-A.

Melissa Cipriano argued the cause for appellant (Cipriano Law Offices, P.C., attorneys; Ms. Cipriano and Jessica S. Swenson, of counsel and on the briefs).

William A. Guhl argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Annemarie L. Mueller, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following her conditional plea of guilt to refusing to submit to a breath test, N.J.S.A. 39:4-50.4a, defendant Jennifer O'Neill appealed the municipal court's denial of her motion to dismiss that charge to the Law Division, which sustained the conviction. Defendant appeals, and we affirm.

The facts may be briefly stated. On January 19, 2013, Bernards Township Police Officer Kevin Little initiated a motor vehicle stop of defendant for speeding on Signal Point Road in Basking Ridge. It was then determined that, prior to operating the vehicle, defendant had consumed alcoholic beverages. Consequently, defendant was arrested and transported to police headquarters for processing.

While at headquarters, Officer Little, pursuant to N.J.S.A. 39:4-50.2(e), recited to defendant the New Jersey Attorney General's Standard Statement for Motor Vehicle Operators1 (Standard Statement), which contained eleven paragraphs that detailed a DWI suspect's obligation to provide a breath sample and the consequences for refusal. As to the latter, paragraph 6 of the Standard Statement, which Officer Little read to defendant, states:

If a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.

After the Standard Statement was read to her, defendant replied that she would take the test if accompanied by her mother. Since defendant's response was conditional, Officer Little read the second part of the Standard Statement that stated if she answered with anything other than "yes," she would be charged with refusal to submit to a breath test:

Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than "yes," I will charge you with refusal. Now, I ask you again, will you submit to breath testing?"

Defendant responded "no." Officer Little then charged defendant with (1) Driving While Intoxicated, N.J.S.A. 39:4-50; (2) Refusing to Submit to a Breath Test, N.J.S.A. 39:4-50-4a; (3) Speeding, N.J.S.A. 39:4-98; and (4) Failure to Produce Documentation, N.J.S.A. 39:3-29.

Thereafter, defendant filed a motion in the municipal court to dismiss the refusal charge, arguing that the State failed to satisfy N.J.S.A. 39:4-50.2(e) by not informing her of the mandatory minimum penalty she faced upon conviction of that offense. After the court denied the motion, defendant pled guilty to the DWI charge and entered a conditional guilty plea to the refusal charge, reserving her right to appeal the denial of her dismissal motion. The remaining two charges were dismissed.2

Defendant appealed to the Law Division, reiterating that because the Standard Statement did not include the mandatory minimum penalties for the refusal charge, she was not adequately informed of the consequences of her refusal, as required by N.J.S.A. 39:4-50.2(e). In his de novo review of the record, the Law Division judge rejected defendant's argument and found her guilty of the refusal charge. The judge reasoned:

This is not a case where the Standard Statement was not read or a case where the wrong version of the Standard Statement was read. This is a case where the officer followed the statutory requirements and read the most current version of the Standard Statement prior to [defendant] refusing to take the breath test. Defendant then refused to provide breath samples for the Alcotest.

Having determined that the Standard Statement, "as written and administered" by Officer Little, "meets the requirements of the Implied Consent and Refusal laws[,]" the judge entered a judgment of conviction, prescribing the same fines and penalties as imposed by the municipal court.

This appeal followed.

As a threshold matter, we are not bound by the trial court's application of the law, as a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). That said, we agree with the Law Division's ruling that both the composition and administration of the Standard Statement in this matter satisfied the statutory requirements of our implied consent and refusal laws.

New Jersey's drunk driving laws are designed "'to curb the senseless havoc and destruction caused by intoxicated drivers.'" State v. O'Driscoll, 215 N.J. 461, 472 (2013) (internal citations omitted) (quoting State v. Marquez, 202 N.J. 495, 496 (2010)). The State's implied consent law, codified at N.J.S.A. 39:4-50.2, reads in relevant part:

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act . . . and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).

[N.J.S.A. 39:4-50.2(a).]

Moreover, the statute requires that police officers read the Standard Statement to all defendants arrested for DWI before endeavoring to administer an Alcotest. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 489 (1999). "By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Widmaier, supra, 157 N.J. at 489. Ultimately, "'anything substantially short of an unconditional, unequivocal assent to an officer's request . . . would undermine law enforcement's ability to remove intoxicated drivers from the roadways' and impede their ability to conduct the test in a timely manner to ensure that the results are meaningful." State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007) (quoting Widmaier, supra, 157 N.J. at 497), aff'd as modified, 196 N.J. 537 (2008).

The statute further requires that the police officer "inform the person arrested of the consequences of refusing to submit to such test . . . ." N.J.S.A. 39:4-50.2(e). On this score, "[a] standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest." Ibid. Thus, notwithstanding that drivers are deemed to consent to a breath test by law, the Legislature wanted to offset the harsh consequences of refusal "by conveying knowledge of them to drivers at the scene[,]" Marquez, supra, 202 N.J. at 507, and to ensure that DWI defendants provide unequivocal consent to a breath test. State v. Duffy, 348 N.J. Super. 609, 611-12 (App. Div. 2002). Indeed, the "principal purpose" of having an officer advise a driver of the penalties for refusal "is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge." State v. Badessa, 185 N.J. 303, 313-14 (2005).

The Marquez Court explained the interplay between the implied consent and refusal statutes: "the refusal statute requires officers to request motor vehicle operators to submit to a breath test; [and] the implied consent statute tells officers how to make that request." Marquez, supra, 202 N.J. at 501.3 Indeed, the Legislature specifically mandated that the officers read a particular statement. Id. at 506 n.8; see also N.J.S.A. 39:4-50.2(e). In this regard, "as a question of law, the authority to define the contents of the Standard Statement vests in the Executive Branch, as delegated by the Legislative Branch." State v. Schmidt, 206 N.J. 71, 87 (2011). So long as the officer used the Standard Statement to inform the defendant of the consequences of refusal "in a manner that should have impelled a reasonable person to comply[,]" O'Driscoll, supra, 215 N.J. at 479, it does not matter what the arrestee mistakenly believed. Marquez, supra, 202 N.J. at 513.

Here, Officer Little read the up-to-date Standard Statement accurately and informed defendant of the mandatory nature of the breath test as well as the serious consequences, including "license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center" program, that would result if she refused to submit a breath sample. The Standard Statement, properly prepared by the Attorney General, clearly and correctly informed defendant of the penalties she faced for refusing to submit to a breath test "in a manner that should have impelled a reasonable person to comply." O'Driscoll, supra, 215 N.J. at 479. Indeed, by stating the potential, harsh maximum range of twenty years, the statement was obviously designed to convince defendant to comply with the breath test, which is a principal legislative goal.

Having specifically mandated that police officers read a particular statement, the Legislature delegated to the Executive the responsibility for its contents and manner of execution. It is not for the courts to rewrite that statement.

In fact, defendant cites to no authority, either statutory or case law, mandating that the Standard Statement specifically identify the mandatory minimum penalties for a breath test refusal, and we know of none. Rather, in our view, the Standard Statement administered in this case, adopted by the Attorney General on July 1, 2012 and used by every law enforcement agency throughout the State, adequately informs arrestees of the consequences of refusal, furthers the legislative goal of convincing them to comply, and thus satisfies the requirements of the State's Implied Consent and Refusal laws.

At oral argument, we were informed that the penalties, including the revocation of defendant's driving privileges, have been stayed pending this appeal. Defendant will surrender her license and pay all fines and penalties within ten days of the filing of this opinion.

1 At the time this appeal was heard by the Law Division on July 10, 2013, the Standard Statement had been most recently updated on July 1, 2012.

2 On the refusal charge, defendant received a total of $439 in fines and costs, a seven month revocation of driving privileges, a twelve hour enrollment in the Intoxicated Driver Resource Center program, and a six-month implementation of an interlock system after her license revocation is lifted. On the DWI charge, the municipal court levied a total of $664 in fines and costs, a three month revocation of driving privileges to run concurrent with the term imposed on defendant's refusal charge, and a concurrent twelve hours in the Intoxicated Driver Resource Center program.

3 Marquez also identified four elements the State must establish to obtain a refusal conviction: "(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." Id. at 503 (citing N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:4-50.4a(a)).