STATEOF NEW JERSEY v. MINA GIRGIS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1501-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MINA GIRGIS,

     Defendant-Appellant.
_______________________________________

              Submitted January 23, 2018 – Decided March 2, 2018

              Before Judges Yannotti and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Municipal Appeal
              No. 16-12.

              Clark & Clark, LLC, attorneys for appellant
              (Ryan J. Clark, on the brief).

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

PER CURIAM
     Defendant appeals from an order of the Law Division dated

November 3, 2016, which denied his motion to vacate his conviction

for refusing to submit to a breath test. We affirm.

     This appeal arises from the following facts. On October 30,

2015, at approximately 1:04 a.m., a Toms River police officer

observed an illegally parked car. The officer approached the

vehicle and saw defendant asleep behind the wheel of the car, with

the keys in the ignition. The car's engine was running and the

headlights were on.

     The    officer   woke    defendant   and   had   him   exit   the    car.

Defendant denied he had been driving, and said a friend had driven

him there and left. Defendant admitted he had consumed two beers

that evening, and the officer observed a bottle of vodka in plain

view on the back seat of the car. Defendant then admitted he had

consumed some of the vodka.

     The officer transported defendant to police headquarters,

where the officer read defendant the Attorney General's standard

statement informing him of the consequences of refusing to submit

to the breath test as required by 
N.J.S.A. 39:4-50.29(e). Defendant

refused to submit to the test. As a result, the officer issued

Summons No. TR-088016, which charged defendant with refusal to

provide    breath   samples   "contrary   to    N.J.S.A.    39:4-50.2."    The

officer also issued Summons No. TR-088015, which charged defendant

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with driving while intoxicated, contrary to 
N.J.S.A. 39:4-50; and

Summons No. TR-088017, which charged defendant with possessing an

open container of alcohol in an automobile, contrary to 
N.J.S.A.

39:4-51b.

     On May 6, 2016, defendant appeared in the Toms River municipal

court. His attorney sought dismissal of the refusal charge, arguing

that the summons erroneously cited 
N.J.S.A. 39:4-50.2. Counsel

argued that the summons should have cited 
N.J.S.A. 39:4-50.4a,

which he asserted was the statute applicable to the charge of

refusing to provide a breath sample. Counsel further argued that

the State could not amend the summons because more than ninety

days had passed since the alleged refusal offense occurred. See


N.J.S.A. 39:5-3(b).

     The municipal court judge denied the motion. Defendant then

pled guilty to the refusal charge and the State agreed to dismiss

the other charges. Defendant reserved the right to appeal the

denial of his motion to dismiss the summons.

     The judge imposed a fine of $506, a $100 surcharge, and $33

in court costs. In addition, the judge ordered the revocation of

defendant's driving privileges for two years, and required that

he spend forty-eight hours at an Intoxicated Drivers Resource

Center. The judge also ordered defendant to use an interlocking



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device on his primary vehicle during the two-year revocation period

and one year thereafter. The judge refused to stay the sentence.

     Defendant filed an appeal seeking de novo review by the Law

Division of the denial of his motion to dismiss the summons

charging refusal to submit to the breath test. The judge considered

the appeal on November 3, 2016, and placed her decision on the

record. The judge rejected defendant's argument that the summons

must be dismissed because the officer failed to cite 
N.J.S.A.

39:4-50.4a.

     The judge noted that 
N.J.S.A. 39:4-50.2, which provides that

every person who operates a motor vehicle in this State consents

to providing breath samples for the purpose of measuring the level

of alcohol in his or her system, and 
N.J.S.A. 39:4-50.4a, which

sets forth the penalties for failing to submit to the breath test,

must be read together. The judge concluded that the summons was

not defective.

     The judge also rejected defendant's contention that he was

denied due process and notice of the charge due to the officer's

failure to cite 
N.J.S.A. 39:4-50.4a. The judge found that defendant

was informed of the charge and the consequences of refusing to

submit to the breath test.

     The judge entered an order dated November 3, 2016, denying

defendant's motion to dismiss the summons. This appeal followed.

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     On appeal, defendant argues: (1) his conviction cannot be

sustained because the summons cited a violation of 
N.J.S.A. 39:4-

50.2, which is not a substantive traffic offense; and (2) the

summons could not be amended because 
N.J.S.A. 39:5-3(b) requires

that a complaint for refusing to provide breath samples be made

within ninety days of the offense.

     When reviewing a decision on a municipal appeal to the Law

Division, we defer to the trial court's findings of fact if "the

findings made could reasonably have been reached on sufficient

credible evidence present in the record." State v. Kuropchak, 
221 N.J. 368, 382-83 (2015) (quoting State v. Johnson, 
42 N.J. 146,

162 (1964)). However, we owe no deference to the trial court's

decision on an issue of law "and the consequences that flow from

established facts," which we review de novo. State v. Hubbard, 
222 N.J. 249, 263 (2015).

     We first consider defendant's contention that the summons

issued for refusal was fatally defective because the officer cited

the implied consent law, 
N.J.S.A. 39:4-50.2, rather than the

statute which sets forth the penalties for refusing to submit to

the breath test, 
N.J.S.A. 39:4-50.4a. Defendant contends 
N.J.S.A.

39:4-50.2 is not a substantive traffic offense and therefore his

conviction cannot be sustained.



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    The implied consent statute, 
N.J.S.A. 39:4-50.2, provides in

pertinent part that:

         [a]ny person who operates a motor vehicle on
         any public road, street or highway . . . 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
         . . . 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 [N.J.S.A.]
         39:4-50 . . . .

              . . . .

         No chemical test . . . may be made or taken
         forcibly and against physical resistance
         thereto by the defendant. The police officer
         shall, however, inform the person arrested of
         the consequences of refusing to submit to such
         test in accordance with section 2 [N.J.S.A.
         39:4-50.4a]    of    this    amendatory    and
         supplementary act. A standard statement,
         prepared by the chief administrator, shall be
         read by the police officer to the person under
         arrest.

    In addition, 
N.J.S.A. 39:4-50.4a provides that "the municipal

court shall revoke the right to operate a motor vehicle of any

operator who, after being arrested for [DWI] . . . refuse[d] to

submit to a [chemical] test provided for in section 2 of . . .

[N.J.S.A. 39:4-50.2] when requested to do so." In determining

whether a person is guilty of refusal,

         [t]he municipal court shall determine . . .
         whether the arresting officer had probable

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          cause to believe that the person had been
          driving or was in actual physical control of
          a motor vehicle . . . while the person was
          under the influence of intoxicating liquor or
          a narcotic, hallucinogenic, or habit-inducing
          drug or marijuana; whether the person was
          placed under arrest . . . and whether he
          refused to submit to the test upon request of
          the officer; and if these elements of the
          violation are not established, no conviction
          shall issue.

          [Ibid.]

     In State v. Marquez, the Court stated that "[t]o identify all

of the elements of a refusal offense, [the Court] must look at the

plain language of both statutes because although they appear in

different sections, they are plainly interrelated." 
202 N.J. 485,

501 (2010). The Court observed that because 
N.J.S.A. 39:4-50.2 and


N.J.S.A. 39:4-50.4a "cross-reference one another internally" and

"rely on each other substantively," the statutes "must therefore

be read together." Id. at 502. The Court stated:

          [a] careful reading of the two statutes
          reveals four essential elements to sustain 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.



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          [Id. at 503 (citing 
N.J.S.A. 39:4-50.2(e),
          39:4-50.4a(a); State v. Wright, 
107 N.J. 488,
          490 (1987)).]

     In Marquez, the Court held that reading the standard statement

is a necessary element of a refusal conviction, and rejected the

contention that the procedural safeguards of 
N.J.S.A. 39:4-50.2

are not a substantive element of the refusal offense. Id. at 506.

The Court added that "[t]he fact that motorists are deemed to have

implied their consent, pursuant to [N.J.S.A. 39:4-50.2], does not

alter that conclusion." Ibid. The Court held that 
N.J.S.A. 39:4-

50.2 and 
N.J.S.A. 39:4-50.4a "impose an obligation on officers to

inform drivers of the consequences of refusal." Ibid.

     We note that in State v. Cummings, the Court held that a

conviction of refusal requires proof beyond a reasonable doubt.


184 N.J. 84, 89 (2005). In Cummings, the Court observed that


N.J.S.A. 39:4-50.4a is the "exact statutory provision applicable

to breathalyzer refusal cases," and that "care should be taken to

list . . . N.J.S.A. 39:4-50.4a" in the summons charging refusal.

Id. at 90 n.1.

     The Cummings Court did not, however, hold that dismissal is

required when the summons cites 
N.J.S.A. 39:4-50.2 rather than


N.J.S.A. 39:4-50.4a. Ibid. (finding "no prejudice resulting from

it"). Indeed, such a conclusion would be inconsistent with the

Court's later decision in Marquez, where the Court held that the

                                8                           A-1501-16T4
elements of the refusal offense are drawn from both 
N.J.S.A. 39:4-

50.2 and 
N.J.S.A. 39:4-50.4a. Marquez, 
202 N.J. at 502.

       Therefore, in this case, the Law Division judge correctly

determined that the summons issued to defendant for refusing to

submit to the breath test was not fatally flawed. Since the

elements of the refusal offense are found in both 
N.J.S.A. 39:4-

50.2 and 
N.J.S.A. 39:4-50.4a, the citation of only the former

statute   does   not   require   dismissal   of   the   summons.    Indeed,

dismissal of the charges under these circumstances would exalt

form   over   substance,   an    approach   our   courts   have   "properly

rejected." State v. Fisher, 
180 N.J. 462, 472 (2004). Moreover,

defendant was not prejudiced because the officer read him the

standard statement, which informed him of the penalties for refusal

set forth in 
N.J.S.A. 39:4-50.4a.

       The judge also correctly found that defendant's reliance

upon State v. Nunnally, 
420 N.J. Super. 58 (App. Div. 2011), was

misplaced. In that case, the defendant held a commercial driver's

license (CDL) and he was driving a commercial vehicle at the time

he was alleged to be driving while intoxicated. Id. at 63-64. The

defendant repeatedly failed to blow properly into the machine that

was being used to test the level of alcohol in his system. Id. at

64. He was cited for refusal to submit to the breath test in



                                     9                              A-1501-16T4
violation of the general refusal statute, 
N.J.S.A. 39:4-50.4a.

Ibid.

     We held that the citation to the general refusal statute,

rather than the CDL refusal statute, required dismissal of the

charge because a CDL refusal is not a lesser-included offense of

general refusal. Id. at 66-67. The proofs required for a CDL

refusal are different from those required for a general refusal.

Id. at 67. The CDL statute provides that an officer must have

probable cause to believe the driver of a commercial vehicle has

at least a .04 percent blood alcohol content, whereas the general

refusal statute only requires probable cause that the driver was

operating the vehicle "under the influence" of alcohol. Ibid.

     We concluded that citation to the general refusal statute

failed to provide the defendant with notice of the offense with

which he was charged. Id. at 67-68. We also concluded that the

State could not amend the charge on the date of trial because it

was more than ninety days after the alleged offense occurred. Id.

at 62, 67-68.

     Here,   the   judge   correctly   found   that   Nunnally   was

distinguishable. As the judge noted, the defendant in Nunnally was

charged with a CDL refusal and the officer cited the general

refusal statute in the summons. In this case, defendant was charged

with general refusal, and while the summons cited only N.J.S.A.

                                10                          A-1501-16T4
39:4-50.2, the summons was not fatally flawed because the implied

consent law and the refusal statute must be read together. The

judge also correctly determined that defendant was adequately

informed of the consequences of his refusal to submit to a breath

test, and that he violated the general refusal law.

     In view of our determination that the summons issued here

properly charged defendant with failing to submit to a breath

test, we need not address defendant's contention that the statute

of limitations in 
N.J.S.A. 39:5-3(b) precluded the State from

amending the summons to cite 
N.J.S.A. 39:4-50.4a.

     Affirmed.




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