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SubmittedMay 31, 2016 Decided June28, 2016

Before Judges Messano and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 33-14.

John Menzel, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Deen, Assistant Prosecutor, on the brief).


Following a trial de novo in the Law Division, defendant Sean M. Byrne was found guilty of refusal to submit breath samples, N.J.S.A. 39:4-50.2. The Law Division judge sentenced defendant to a seven-month driver's license suspension, ordered him to install an ignition interlock device for one year and seven months after restoration of his driving privileges, and imposed the appropriate fines, costs and penalties.

On appeal, defendant raises the following contentions

I. The "Confusion Doctrine" Is a Viable Defense Which Defendant Should Have the Opportunity to Present at Trial.

II. Defendant Asserts His Right to a Jury Trial, Given the Legislature's Packing of Penalties for DWI.

We have considered defendant's contention in Point II in light of the record applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant is not entitled to a jury trial. See State v. Denelsbeck, ___ N.J. ___ (2016). Accordingly, we limit our review to defendant's contention in Point I.

The follow facts inform our review. At approximately 1:00 a.m. on April 25, 2014, defendant was stopped by a police officer after he failed to follow the officer's directions and swerved too closely to the officer. Defendant admitted he had consumed two drinks, and he attempted to perform certain field sobriety tests without objection, but failed to satisfactorily perform them.

Defendant was transported to police headquarters, where he was read the nine instructions contained in the New Jersey Attorney General's Standard Statement For Operator of a Motor Vehicle (the Standard Statement), and asked to submit samples of his breath. The Standard Statement included the following instructions

2. The law requires you to submit samples of your breath for the purpose of testing to determine alcohol content.

. . . .

5. If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated.

6. If the court finds you guilty of the refusal, you will be subject to various penalties, including license revocation for 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.

7. You have no legal right to have an attorney, physician or anyone else present for the purpose of taking the breath samples. You have no legal right to refuse to give, or delay giving, samples of your breath.

. . . .

9. I repeat, the law requires you to submit samples of your breath for testing. Will you submit samples of your breath?

Despite these instructions, when asked if he would submit samples of his breath, defendant answered, "Lawyer says to say no." Defendant was then read the Standard Statement's additional instruction: "Your answer is not acceptable. The law requires that you submit samples of your breath for testing. If you do not answer, or answer anything other than "yes," I will charge you with refusal." When asked again if he would submit samples of his breath, defendant answered, "No." Defendant admitted that he understood the Standard Statement as read to him.

Defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit breath samples, N.J.S.A. 39:4-50.2; careless driving, N.J.S.A. 39:4-96; reckless driving, N.J.S.A. 39:4-96; and failure to obey a police officer, N.J.S.A. 39:4-80. Before municipal court Judge Scott J. Basen, defendant raised a defense to the refusal charge based on the "confusion doctrine" alluded to in State v. Leavitt, 107 N.J. 534 (1987) (the confusion defense). In support of the confusion defense, defendant proffered that a friend of his, who was an attorney licensed to practice in New York, would testify as follows, in pertinent part

4. [Sometime] before [defendant's arrest for DWI, defendant] and I were talking about how one should handle himself if stopped or arrested on suspicion of [DWI]. I recall telling [defendant], among other things, to "not take any tests."

5. I was referring to balance testing. But, in retrospect, I cannot be sure [defendant] understood me correctly or whether he was confused about his legal rights and obligations when facing a [DWI] investigation.

6. Soon after his [DWI] arrest, [defendant] called me by telephone and stated that he had declined to submit breath samples in reliance on his understanding of his legal rights and obligations based, at least in part, on our earlier conversation.

Judge Basen found no need for testimony because whether the confusion defense applied was a question of law for the court to determine. The judge held that the confusion defense was not cognizable in this case as a matter of law because even if defendant received mistaken legal information, he was properly read the correct informed consent information from Standard Statement, advised he had to submit breath samples, and refused to do so.

Defendant then pled guilty to refusal to submit breath samples, reserving his right to appeal the judge's ruling. At a trial de novo before Law Division Judge Rochelle Gizinski, defendant relied on Leavitt to argue that the confusion defense is a viable defense that he should have the opportunity to present at trial in the municipal court.

Judge Gizinski noted that the Leavitt Court alluded to the possibility of a confusion defense only in certain limited circumstances arising from the inherently inconsistent nature between Miranda1 warnings and the implied consent warnings contained in the Standard Statement. The judge also noted that the Leavitt Court never resolved the issue because there was videotape evidence of the breath sample proceeding, which indicated the defendant was not confused. The judge questioned the applicability of the confusion defense in this case, since that defense was never adopted in a reported opinion in the two decades following Leavitt, and never extended beyond the limited circumstances in that case. In any event, the judge concluded that because defendant did not assert confusion based on an inconsistency between Miranda and the implied consent warnings in the Standard Statement, Leavitt did not apply.

Addressing the merits, Judge Gizinski found that the record belied defendant's claim of confusion, as he submitted to certain field sobriety tests without objection. The judge also found that defendant was read the clear, concise and easy to understand Standard Statement and refused to submit breath samples despite the implied consent warnings. The judge found defendant guilty of refusal to submit breath samples and imposed the sentence we have previously mentioned. The judge stayed the sentence pending appeal.

On appeal, defendant reiterates the argument made to Judge Gizinski and Judge Basen. Defendant posits that the confusion defense applies because unlike the defendant in Leavitt, he submitted a proffer substantiating his claim of confusion caused by his attorney-friend's erroneous legal advice. We disagree.

We review the legal determination of the Law Division and municipal court de novo. State v. Wolfe, 431 N.J. Super. 356, 360 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 217 N.J. 285 (2014). Applying this standard, we discern no reason to reverse. The Court has never recognized confusion as a defense to refusal to provide a breath sample. See Leavitt, supra, 107 N.J. at 542. Accordingly, the confusion defense is not cognizable here as a matter of law.

In any event, defendant failed to establish confusion. There was no evidence he was confused about his Miranda rights or the warnings read to him from the Standard Statement. Defendant's claim is only that his confusion stemmed from his attorney-friend's faulty legal advice. However, the Standard Statement clearly advised him that the law required him to submit breath samples, he had no legal right to refuse to give breath samples, and he would be issued a separate summons for refusal. After defendant responded "Lawyer says to say no[,]" he received a second warning advising that his answer was unacceptable and reiterating that the law required him to submit breath samples. We are satisfied that defendant has failed to offer affirmative evidence of any confusion upon hearing the refusal warnings.

Defendant's conviction for refusal to submit breath samples is affirmed, the stay of sentence is vacated, and the matter is remanded to the Law Division for imposition of sentence.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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