Pulmonary problems defense to refusal STATE v MONACO,

STATE v MONACO, Defendant–Appellant.

Decided: March 17, 2016

Before Judges ALVAREZ, OSTRER and MANAHAN. Diane Monaco, appellant pro se. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

Defendant Diane Monaco appeals from her June 24, 2014 conviction, after a trial de novo, of 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. Having considered defendant's arguments in light of the facts and applicable law, we affirm.

I.

At the municipal court trial, East Hanover Police Officers Michael Filippone and Randy Patner testified for the State. Defendant testified in her own defense. She also called Gil Snowden, an expert of field sobriety tests; John Scolamiero, M.D., her personal physician; and a friend, Claudette Maher. We discern the following facts from the record.

Shortly after midnight on April 14, 2012, defendant drove through a stop sign at a T-shaped intersection in a residential neighborhood of East Hanover Township. Failing to turn right or left, she continued forward, jumped the curb, and came to a stop on the lawn of a residence. The airbag deployed.

When Filippone arrived at the scene, defendant's vehicle was still in drive, but the engine was off. Filippone detected the odor of alcoholic beverage. Defendant's speech was slurred. Other aspects of defendant's appearance indicated intoxication. She denied consuming any alcoholic beverages.

The officer administered field sobriety tests. Defendant performed poorly on an alphabet test, skipping several letters. Although she stated she had an injury to her left knee, the officer observed that defendant had no difficulty walking. He asked her to perform the one-leg stand and heel-to-toe tests. She did poorly on both. She was staggering and swaying. Her eyes were watery and bloodshot; her face was flushed. The officer arrested defendant, and she was transported to the police station.

Defendant was initially held in a processing room for about a half hour, as depicted by a video recording in evidence. During that time, she was searched by a police matron, given a Miranda1 warning, and read the standard statement regarding chemical breath tests, and the DWI questionnaire. Patner also completed a property report. Defendant appeared calm and cooperative. She admitted she had consumed wine that evening. An officer permitted her to use her inhaler for her asthma. Over twenty minutes elapsed thereafter while Filippone, Patner (who had also been dispatched to the scene), or the matron were present in the room. Filippone and Patner both testified defendant did not regurgitate or put anything in her mouth. Defendant was then escorted to another room where Filippone administered the breath test.

Filippone instructed defendant that she needed to breathe in deeply, and blow in one long continuous breath until he directed her to stop. When defendant interjected that she had used her inhaler, Filippone responded it would not interfere with her test, because she had done so over twenty minutes earlier. After the first attempt, Filippone asserted she was not making a genuine effort to blow into the mouthpiece. Defendant responded she had asthma. After two more attempts, Filippone terminated the breath test.2 Defendant's air volumes were .7, 1.0 and .5 liters, over 5.2, 5.9 and 4.1 seconds, respectively. Defendant was then taken to a cell, where she acted belligerently, yelled, and cursed.

Filippone's trial testimony presented the facts set forth above. Patner testified that he observed defendant during the twenty-minute observation period.

Defendant testified that she had one glass of wine at dinner with her daughter, and a second glass while visiting Maher at her home. She said she drove through the stop sign while she was distracted by a phone call from Maher. She said her knee injury, which she documented, prevented her from performing well on the field sobriety tests. She also presented evidence of another medical condition to explain an aspect of her appearance when arrested.

Defendant challenged Filippone's testimony. She asserted he could not have detected an odor of alcoholic beverage as she had consumed coffee at the end of the evening. She denied that he asked her if she needed medical attention. She also maintained he did not ask her to recite the alphabet, and he did not adequately instruct her how to perform the physical field sobriety tests. She asserted she blew as hard as she could when performing the breath test.

Defendant also claimed there was an interruption in the twenty-minute observation period because she was permitted to leave the processing room to use the restroom in a cell, before returning to the processing room. She asserted the police had tampered with the video evidence.

Dr. Scolamiero, defendant's treating physician for roughly twenty-five years, was permitted to testify as an expert in internal medicine with treatment of pulmonary issues as part of his practice. The doctor testified defendant suffered from asthma, for which he had prescribed multiple medications. The municipal court judge sustained an objection to the question whether, in the doctor's opinion, defendant was able to exhale 1.5 liters of air during a four-and-a-half second period. The court held defense counsel had not laid a sufficient foundation. Defense counsel never returned to the question, although the doctor's testimony resumed on the next trial day, when he presented pulmonary function tests he administered before and after defendant's arrest.

The doctor reviewed the test results from November 11, 2011. He stated that post-treatment, defendant's “forced expiratory volume” was only fifty-six percent of what was predicted for a woman of her age, weight, and body mass index. Her flow rate was forty-five percent of what was predicted. The report indicated defendant had “moderate obstruction.”

However, the doctor's explanation of the test results was often confusing and self-contradictory, particularly when he was asked to describe defendant's test results that would allow for comparisons with the minimum breathing volumes required for the chemical breath test.3 He did assert that defendant “had an ability prior to being treated for approximately ․ 1.3 to 1.4 liters over about four or five seconds.” She improved to three liters post-treatment. However, he noted that tests were performed while defendant was standing. Her results would be roughly twenty percent lower if seated while taking a chemical breath test. He asserted that factors such as excitability, nervousness, anxiety, and trauma could also negatively affect a person's ability to breathe at a particular volume.

Snowden testified about how a person's physical impairments could affect balance and performance on field sobriety tests. Maher testified that defendant had a glass of wine early in the evening, and a cup of coffee later. She stated she called defendant shortly after she left, but did not reach her. Soon thereafter, defendant called Maher to report the accident.

The municipal court credited the police witnesses over defendant, and found her guilty of DUI and refusal. As defendant had a prior DUI in 2009, the court imposed, on the DUI, a two-year loss of license, forty-eight hours at the Intoxicated Driver Resource Center (IDRC), no jail time, an ignition interlock, and mandatory minimum fines and fees; and, on the refusal, a consecutive two-year loss of license, forty-eight hours at the IDRC, interlock to run concurrent, and mandatory minimum fines and fees.

In the trial de novo, defendant argued the police lacked probable cause to arrest because they did not properly administer the field sobriety tests; the police were not credible; the police failed to observe defendant for the requisite twenty-minute period; the police read her an outdated standard statement; the state tampered with evidence; and Dr. Scolamiero established that defendant was physically incapable of breathing at a sufficient volume for the Alcotest. The Law Division judge rejected each of these arguments.

The court found there was probable cause to arrest based on the totality of the circumstances confronting the arresting officers. Citing State v. Bealor, 187 N.J. 574, 589 (2006) and State v. Morris, 262 N.J.Super. 413, 421–22 (App.Div.1993), the court found that probable cause existed, even absent the field sobriety tests, based on the single-car accident, the odor of alcohol, defendant's physical appearance, and slurred speech. The field sobriety tests only bolstered the finding of probable cause. Coupled with her admission that she consumed wine, the court found the State established beyond a reasonable doubt that defendant was guilty of DUI.

The court rejected defendant's challenge to the officers' credibility. Citing State v. Johnson, 42 N.J. 146, 157 (1964), the court gave due, but not controlling, regard to the municipal court judge's determination that the officers were more credible than defendant.

The court also found that the State proved, by clear and convincing evidence, that the State complied with the twenty-minute observation period required by State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008). The court was satisfied that Filippone and Patner, as well as the matron, maintained sufficient proximity to the defendant to detect whether she did anything to compromise the chemical breath test, such as regurgitating or putting something in her mouth. The court noted that eye-to-eye contact was not required, citing State v. Carrero, 428 N.J.Super. 495, 513 (App.Div.2012), and State v. Filson, 409 N.J.Super. 246, 258 (Law Div.2009).

Relying on State v. O'Driscoll, 215 N.J. 461 (2013), the court found that the failure to mention the prospect of an ignition interlock in the standard statement was inconsequential, as there was no indication it affected defendant's non-compliance with the breath test. The court also rejected defendant's claim that she left the processing room to use the restroom, and that the police tampered with the video evidence. The court closely examined the video evidence, and concluded defendant's version of the facts lacked credibility.

Finally, the court found that the State proved refusal beyond a reasonable doubt. The court noted the four elements of the violation, citing State v. Marquez, 202 N.J. 485, 503 (2010):

(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.

Based on the court's earlier findings, the State satisfied the first and second elements; and the video evidence and Filippone's testimony established the third and fourth.

The court focused on defendant's argument, based largely on Dr. Scolamiero's testimony, that her asthma rendered her incapable of producing the minimum volume required. The court noted that Chun required most arrestees to produce a minimum volume of 1.5 liters over 4.5 seconds, and a minimum flow rate of 2.5 liters per minute. Chun, supra, 194 N.J. at 97. Women over sixty years of age have to produce 1.2 liters over 4.5 seconds. Ibid.

The court found that Dr. Scolamiero's testimony ultimately did not establish lack of capability. The court noted that he testified that during her November 2011 test, the last one before the accident, she had a pre-treatment ability to blow 1.3 to 1.4 liters over about four to five seconds, which improved to three liters after treatment. She also had a minimum flow rate of 1.74 liters per minute, pre-treatment. The court noted that defendant provided her breath samples after using her inhaler.4

The court found defendant guilty of DUI and refusal and imposed the same sentence that the municipal court imposed.

On appeal, defendant presents the following points for our review, renewing many of the arguments presented to the Law Division:

Point 1: No Probable Cause.

Point 2: Credibility of the Police Officers.

Point 3: Twenty Minute Observation Period.

Point 4: Court Is Limited to Impose Only Consequences That The Defendant Had Been Informed Of; Incorrect Information on Ticket # 1410–EHT–002619.

Point 5: Tampering With Evidence.

II.

In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. Johnson, supra, 42 N.J. at 162. Unlike the Law Division, which conducts a trial de novo on the record, R. 3:23–8(a)(2), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only “a very obvious and exceptional showing of error” will support setting aside the Law Division and municipal court's “concurrent findings of facts․” Id. at 474. However, where issues on appeal turn on purely legal determinations, 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, 378 (1995)), certif. denied, 209 N.J. 430 (2012).

Applying this standard of review, we affirm defendant's conviction substantially for the reasons set forth in the written opinion of the Law Division judge. We comment only on two aspects of defendant's challenge to her refusal conviction: the officer's failure to inform her that an ignition interlock would be required if convicted of refusal; and allocation of the burden of proof on the issue of her alleged incapability to complete the chemical breath test.

A.

Defendant renews her argument that she was not adequately informed of the consequences of refusal because the officer did not mention the ignition interlock requirement. We recognize that the standard statement in use when defendant was arrested in April 2012 did not refer to imposition of the ignition interlock requirement upon conviction, notwithstanding that the requirement was made a mandatory consequence of conviction in 2010. L. 2009, c. 201, §§ 2, 5 (Jan. 14, 2010). The standard statement promulgated by the Attorney General was not revised to incorporate mention of the ignition interlock consequences until July 2012. See Office of the Attorney Gen., Standard Statement for Motor Vehicle Operators (July 1, 2012), available at http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf.

In O'Driscoll, supra, 215 N.J. at 468–69, 473–74, the Court addressed the closely related issue of an officer's reading of an outdated standard form that failed to incorporate various enhancements of the license suspension period and potential fines. The Court held that the question of whether a defendant could avoid conviction for refusal because he was erroneously read a superseded or outdated standard statement was subject to a materiality test. Id. at 476. “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 prior case law, nor the “language of the implied consent statute ․ require absolute precision.” Id. at 476.

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.” Id. 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. However, “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, 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.

We note that O'Driscoll was decided in September 2013, after all but summations and decision in the Municipal Court, but before the trial de novo. The record contains no testimony or other competent evidence to indicate that the mandated use of an ignition interlock device for six months would have deterred defendant from refusing, particularly inasmuch as the prospect of a lengthy license suspension did not. We therefore reject defendant's argument that her conviction should be set aside because the standard statement failed to advise her of the ignition interlock requirement.

B.

We also conclude that a defendant bears the burden of proof regarding his or her alleged physical impairment to complete a chemical breath test.

The Court has held a defendant who defends a refusal charge by claiming he did not speak or understand English, and therefore did not understand the request to submit to the test, bears both the burden of production and persuasion on the issue. Marquez, supra, 202 N.J. at 514. This approach places the burden on the party with the greatest access to information on the issue, and “help[s] separate feigned claims from real ones.” Ibid. Similarly, a defendant bears the burden of persuasion to establish he was too confused to refuse. State v. Leavitt, 107 N.J. 534, 542 (1987); State v. Sherwin, 236 N.J.Super. 510, 518 (App.Div.1989). Although we are unaware of published New Jersey authority that places the burden on a defendant to prove physical incapability to perform a breath test, this allocation of the burden is consistent with Marquez and Leavitt.

Our conclusion is also consistent with out-of-state authority. See, e.g., Hollis v. Oklahoma, 183 P.3d 996, 999–1000 (Okla.2008) (requiring defendant to present evidence he was mentally incapable of giving a knowing and conscious refusal); Dep't of Transp. v. Kelly, 335 A.2d 882, 884 (Pa.Commw.Ct.1975) (placing burden on defendant to prove by competent evidence he was physically incapable of submitting to Breathalyzer test); Cunningham v. Bechtold, 413 S.E.2d 129, 135–36 (W.Va.1991) (defendant had burden to show medical disability, in form of broken nose, prevented him from breathing into Breathalyzer); see also Harvey M. Cohen & Joseph B. Green, Apprehending and Prosecuting the Drunk Driver § 5.07(7)(e) (2015) (“In those courts where a refusal may be excused with evidence that the defendant's ability to comply was legitimately impaired, the defendant bears the burden of proving the disability.”); Richard E. Erwin, Defense of Drunk Driving, Criminal–Civil (3d ed.2015) § 4.08[8] (“The driver has the burden of proving by competent evidence that he or she was physically unable to take the test. When no obvious inability is apparent, the driver must support a claim of inability with competent medical evidence, and failure to provide such evidence will result in a finding of refusal.”).5

Applying these principles, we discern no error in the court's finding that defendant failed to demonstrate she was incapable of performing the chemical breath test. Dr. Scolamiero's testimony was often confusing and inconsistent. He persuasively demonstrated that defendant suffered from asthma and her breathing capacity was roughly half that predicted of a woman her age and size. He also presented measurements of pre-treatment breathing volumes and flow rates that fell below the levels required for the chemical breath test.

However, defendant's measurements doubled after treatment, producing a volume of three liters, which exceeded the minimum requirement. Even if it were reduced by twenty percent to account for a seated position, the measurement would exceed the required 1.5 liters. The doctor was not asked whether two puffs from an inhaler, as defendant took in the processing room, would produce such an improvement. Nor was he asked, after presenting his testing data, whether he believed defendant was capable of producing sufficient air volume when she was tested by Filippone. Thus, the court reasonably found that defendant failed to meet her burden of proving she was physically incapable of producing the minimum air volume.

C.

To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

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

2.  Although the officer was authorized to terminate the test at that time, we do not condone the officer's harsh language. Having concluded defendant did not try to complete the test, he demeaned defendant, stating she disgusted him. The officer lacked the expertise to judge the extent of defendant's claimed disability.

3.  For example, the doctor was asked, “Doctor, now with regard to D–26 [the test results for June 25, 2012], can you calculate Ms. Monaco's flow rate in terms of liters per minute? ” (emphasis added). He responded, “That was 1.643.” He was asked to explain how he arrived at 1.643. He responded, “Forced expiratory volume which is in this case 133 times the percent .33, divided by her BMI.” After the judge confirmed defendant's BMI, the doctor was asked, “And that figure again, Doctor, is what”? He answered, “1 .643.” He was asked “And that's liters per minute?” He answered, contrary to his answer earlier, “That's in four and a half seconds.”

4.  The court also stated that “defendant never tells the [o]fficers that she is incapable of producing the required volume; instead she informs the [o]fficers repeatedly that she uses and had just used her inhaler.” However, as noted, defendant did tell Filippone that she had asthma after she failed to provide sufficient air volume in her first attempt.

5.  Under the Criminal Code, “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.” N.J.S.A. 2C:2–1(a). However, “the provisions of the Code governing principles of liability are not applicable to the motor vehicle violation of driving while intoxicated․” State v. Hammond, 118 N.J. 306, 318 (1990).

OSTRER, J.A.D.

Refusal and dwi do not merge State v. Eckert,

State v. Eckert, A-0216-08T4; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication November 16, 2009. Before Judges Lisa, Baxter and Alvarez.  

This appeal involves a sentencing issue concerning the interplay between the driver’s license suspensions that are required following a conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), when, by virtue of the “step-down” provisions of the DWI statute, the DWI conviction is treated as a first offense, thereby permitting a license suspension of three months. In the municipal court, the parties agreed that defendant would plead guilty to both DWI and refusal, but the refusal charge would merge with the DWI offense, and a sentence would therefore be imposed only on the DWI. No specific agreement was reached on the length of the driver’s license suspension to be imposed; at sentencing, the municipal court judge imposed a seven-month license suspension, even though the step-down provision of the DWI statute entitled defendant to a three-month license suspension. The Law Division, in a trial de novo, did likewise. Defendant appeals.

The issue is whether a refusal conviction can be merged with a DWI conviction, or whether a separate sentence is the only permissible result where a defendant pleads guilty, or is found guilty, of both.

Held: A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement violated applicable merger principles as well as the Supreme Court’s Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.

By providing a strong disincentive to withholding consent to a breath test, the Implied Consent Law, N.J.S.A. 39:4-50.2, and the refusal statute, N.J.S.A. 39:4-50.4a, together advance New Jersey’s public policy of preventing drunk driving. Additionally, the Supreme Court, in 1990, adopted the “Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey,” which prohibits plea agreements in cases where the defendant is charged with driving while intoxicated. Guideline 4 specifically permits the dismissal of the refusal charge where the defendant is charged with a second or subsequent DWI violation, but expressly prohibits the dismissal of the refusal charge where it is charged in connection with a defendant’s first DWI offense.

The appellate panel rejects defendant’s argument that merging the refusal conviction into the DWI conviction preserves the refusal conviction, and does not run afoul of the Court’s prohibition on the dismissal of the refusal violation in instances of a first DWI conviction. Merging the refusal conviction with the DWI conviction, when the resulting license suspension is only for three months, rather than the seven months required by the refusal statute, preserves the refusal violation in name only. Sentencing defendant to a three-month suspension, under the guise of a merger of offenses is nothing more than a de facto dismissal of the refusal charge, a result that is prohibited by the guidelines. In the official comment promulgated simultaneously with issuance of the guidelines, the Court expressly prohibited the use of “merger” as a technique designed to circumvent the general prohibition in the guidelines on plea agreements in drunk-driving cases and its specific prohibition on dismissal of refusal violations for first-time DWI offenders. Moreover, accepting defendant’s argument that he was entitled to a mere three-month license suspension creates the potential for an unacceptable result in that defendant, who pleaded guilty to both DWI and refusal, would receive a three-month license suspension, while another driver, who pleads guilty only to refusal, would receive a seven-month suspension.

Further, the language the Legislature chose to incorporate in the refusal statute, N.J.S.A. 39:4-50.4a(a), specifically provides that “[f]or a first offense, the revocation [of driving privileges] may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S. 39:4-50[, the drunk driving statute,] arising out of the same incident.” By choosing to permit concurrent or consecutive license suspensions for first-time refusal offenders, the Legislature insisted on the preservation of the refusal conviction. The appellate panel concludes that the Legislature, by virtue of its failure to authorize the merger of the refusal violation with the DWI conviction for first-time offenders, and its insistence that the refusal conviction be preserved by way of a concurrent or consecutive sentence, intended to forbid the result defendant urges.

Lastly, a conviction for refusal to submit to a breath examination cannot, as a matter of law, merge with a conviction for drunk driving. Two offenses will not merge when each offense requires the proof of an additional fact not required by the other, unless principles of fundamental fairness and due process would be offended by multiple prosecutions. The DWI statute requires proof beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of alcohol or other intoxicant. To prove a defendant guilty of refusal, the state need only prove beyond a reasonable doubt that the arresting officer had probable cause to believe that defendant was operating the vehicle while intoxicated, and that, beyond a reasonable doubt, the defendant refused to submit to the breath test. Thus, unlike the refusal statute, the DWI statute requires proof beyond a reasonable doubt of operation of a vehicle while intoxicated, not merely that police had probable cause to so believe.

The appellate panel finds the DWI and refusal statutes do not merge, and the imposition of separate punishments for each would not violate guarantees of due process and fundamental fairness or the prohibition against double jeopardy. The merger of the DWI and refusal convictions was improper. The panel reverses the sentence imposed by the Law Division and remands.

source https://www.law.com/njlawjournal/almID/1202435527282/

State v. Spell (A-99-07) 196 N.J. 537, The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.

State v. Spell (A-99-07) 196 N.J. 537, The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.

Argued October 20, 2008 -- Decided November 10, 2008

PER CURIAM.

Defendant Ernest Spell was convicted in municipal court of refusing to submit to a Breathalyzer® test, in violation of N.J.S.A. 39:4-50.2. At a trial de novo before the Superior Court, Law Division, defendant was convicted anew. 

The Appellate Division affirmed the conviction.  State v. Spell, 395 N.J. Super. 337 (2007). The panel also held that whenever a person detained for driving while intoxicated refuses to take a Breathalyzer® test immediately upon request, police officers must read the additional, final paragraph of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle - 194 N.J. 269 (2008).

HELD: The Court affirms defendant's conviction substantially for the reasons expressed by the Appellate Division. The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.

1. The record supports the finding that defendant unequivocally refused to take the Breathalyzer® test. (p. 2)

2. The additional paragraph of the standard statement to which the Appellate Division referred is, according to its instructions, to be read aloud by police officers only if, after all other required warnings have been provided, a person detained for driving while intoxicated either conditionally consents or ambiguously declines to provide a breath sample. That paragraph reiterates some of the prior warnings, including that the person's right to remain silent and right to counsel do not apply to the taking of breath samples and do not give the person the right to refuse to provide them; and that if the person does not unconditionally agree to provide breath samples, the person will be charged with refusal to submit to the test. That paragraph concludes by again asking if the person will submit to giving breath samples. The Appellate Division's holding that requires police officers to read that paragraph in all cases was not necessary to the determination of this case. To that extent, it is vacated. (pp. 2-3)

3. The Legislature has vested in the Chief Administrator of the Motor Vehicle Commission the authority to determine the contents and procedure to be followed in respect of the standard statement. The Court refers the procedure outlined by the Appellate Division to the Chief Administrator for consideration. (p. 4)

4. Because the decision to amend the standard statement is vested in the sound discretion of the Chief Administrator, the Court does not retain jurisdiction over that aspect of the judgment. (pp. 4-5)

The judgment of the Appellate Division is AFFIRMED, as MODIFIED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this opinion.

SUPREME COURT OF NEW JERSEY

A- 99 September Term 2007

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ERNEST SPELL,

Defendant-Respondent.

Argued October 20, 2008 - Decided November 10, 2008

On certification to the Superior Court, Appellate Division, whose opinion is reported at 395 N.J. Super. 337 (2007).

Boris Moczula, Assistant Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney; Natalie A. Schmid Drummond, Deputy Attorney General, on the brief.

John Vincent Saykanic argued the cause for respondent.

Jeffrey S. Mandel argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (PinilisHalpern,attorneys).

PER CURIAM.

Defendant Ernest Spell was convicted in municipal court of refusing to submit to a Breathalyzer^® test, in violation of N.J.S.A. 39:4-50.2. At a trial de novo before the Law Division of the Superior Court, defendant was convicted anew, and that conviction was affirmed by the Appellate Division.  State v. Spell, 395 N.J. Super. 337 (2007). We granted the petition for certification filed by the State of New Jersey, 194 N.J. 269 (2008), and denied defendant's cross-petition for certification.  Ibid. We also granted to the Association of Criminal Defense Lawyers of New Jersey leave to appear as amicus curiae.

We affirm defendant's conviction substantially for the reasons expressed by the Appellate Division. As the panel succinctly noted, "defendant was found to have unequivocally refused to take the breathalyzer test[ and t]he record supports such a finding[.]"  Spell, supra, 395 N.J. Super. at 347. We add only the following.

In further holding "that, effective on October 1, 2007,¹ officers must read the additional paragraph of the [New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle - 157 N.J. 475, 498-99 (1999) (recognizing that when "it may be in the interest of both law enforcement officials and the driving public to amend the standard statement in order to eliminate any ambiguity concerning a motorist's intent to submit to the test[,]" judiciary may "recommend a modification to the instructions accompanying the statement[;]" it may "urge [that Chief Administrator of the Motor Vehicle Commission] consider revising the standard statement" as recommended; and it may "encourage [that Chief Administrator] simplify and clarify" statement). And, because the decision to amend the standard statement is vested in the sound discretion of the Chief Administrator, we do not retain jurisdiction over that aspect of this judgment.

As modified, the judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this opinion.

State v. Marquez (A-35-09)Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

State v. Marquez (A-35-09)Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed. 

 202 N.J. 485

Argued February 2, 2010 -- Decided July 12, 2010

RABNER, C.J., writing for a majority of the Court.

In this case challenging the conviction of a non-English speaking driver for refusing to submit to an alcohol breath test, the Court analyzes the interplay between New Jersey's implied consent law, N.J.S.A. 39:4-50.2, and its refusal law, N.J.S.A. 39:4-50.4a, to determine whether the statutes require law enforcement officials to inform motorists of the consequences of refusing to consent in a language that the driver speaks or understands.

On September 20, 2007, a Plainfield police officer responded to the scene of a two-car accident. The officer approached the driver of one of the vehicles, German Marquez, and asked in English for his credentials. Because Marquez did not understand, the officer repeated the request in Spanish. Marquez produced his credentials. The officer noticed that Marquez smelled of alcohol and was unstable on his feet. He attempted in English to direct Marquez to perform field sobriety tests, but Marquez did not understand. Believing that Marquez was under the influence of alcohol, the officer placed him under arrest and transported him to the police station. 

At the police station, Marquez was brought into the Alcotest room. Speaking English, an officer read to Marquez the "Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle—N.J.S.A. 39:40-50.2(e)" (standard statement). This is an eleven-paragraph statement advising drivers that, among other things, cooperating with the test is required by law, the right to an attorney does not apply to taking breath samples, responses that are ambiguous will be treated as a refusal, and refusing to consent is a violation that results in license revocation. The standard statement concludes by asking the driver whether he or she will submit the breath samples. After the statement was read to Marquez, he shook his head and pointed to his eye. Because Marquez's response was ambiguous, the officer read to him in English additional paragraphs that summarized the warnings provided in the initial reading and again concluded with the question whether he would consent. This time, Marquez responded in Spanish that he did not understand. The officers then attempted to demonstrate how to use the Alcotest machine, but Marquez did not follow their pantomimed efforts. Marquez was issued summonses for driving while intoxicated (DWI), refusing to submit to a breath test, and careless driving.

A Plainfield Municipal Court judge heard testimony from the officers and viewed a videotape of the events in the Alcotest room. There was no dispute that Marquez does not speak English. Marquez testified through an interpreter that he was not drunk, he had taken two Percocet tablets for pain associated with an eye injury, and that the Percocet made him sleepy and dizzy. He also stated that he did not understand what was read to him at the police station and that he had taken his driver's license exam in Spanish. Based on the officer's field observations of Marquez, the judge found him guilty of DWI and refusing to submit to a breath test. The judge noted that the officer properly read the standard statement, there was no precedent requiring that the statement be read in Spanish, and Marquez refused to take the test. In addition to imposing fines and assessments, the court suspended Marquez's license for the minimum period of seven months on the refusal violation, and for three months, to run concurrently, on the DWI conviction. The court stayed the sentence to permit Marquez to seek further review.

Marquez sought a trial de novo in the Superior Court. He conceded that there was credible evidence as to the DWI offense, but challenged the refusal violation. The court convicted Marquez after finding that there was no basis to require that the standard statement be read in Spanish. The court stayed the sentence pending an appeal.

Marquez appealed only the refusal conviction, arguing that he could not be guilty because he does not understand English. The Appellate Division affirmed.  408 N.J. Super. 273 (App. Div. 2009). The panel noted that implied consent to submit to breath tests is given whenever a driver obtains a New Jersey driver's license, and explained that there was no requirement that the standard statement be translated. The panel recommended, however, that the Motor Vehicle Commission (MVC) consider in the future having the standard statement translated into Spanish and other prevalent languages. The Supreme Court granted Marquez's petition for certification.  200 N.J. 476 (2009).

HELD: In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey's implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed. 

1. The Legislature criminalized drunk driving in 1921. In 1951, it adopted a presumption that anyone operating a vehicle with a blood-alcohol content of .15% was intoxicated. However, drivers faced no penalties for refusing to submit to tests, therefore refusal rates were high. In 1966, the Legislature addressed this problem by enacting an implied consent law, N.J.S.A. 39:4-50.2, and a refusal statute, N.J.S.A. 39:4-50.4. The former deemed that all motorists consented to the taking of breath samples. The latter authorized a license revocation if a driver refused to participate in the blood test. Amendments passed in 1977 addressed a continued pattern of refusal flowing from the fact that refusal penalties were shorter than any penalty for drunk driving except for a first offense. The Legislature raised the penalty for refusal and added a requirement that police offers inform the driver of the consequences of refusing. The Legislature also amended the implied consent law to require the DMV to prepare a standard statement to be read to motorists. In 1981, 1994, and 2004, the Legislature again revised the statutes, increasing the refusal penalties. In 2005, this Court determined that because refusal cases are quasi-criminal in nature and subject to double jeopardy principles, the proper burden of proof for refusal is beyond a reasonable doubt. (Pp. 12—16) 

2. Reviewing the plain language of the statutes, the Court notes that the implied consent statute deems any person who operates a motor vehicle on a public road to give his or her consent to the taking of breath samples, requires a police officer to "inform the person" of the consequences of refusing, and directs that a "standard statement" be read by the officer. Turning to the refusal statute, the Court notes that it provides penalties for refusing to submit to the test, including driver's license suspensions for not less than seven months for a first offense, and up to ten years for subsequent offenses. The Court determines that these interrelated statutes must be read together, and finds that there are four essential elements that must be proven beyond a reasonable doubt to sustain a refusal conviction: (1) the arresting officer had probable cause to believe that defendant had been driving or was in 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. (Pp. 16—22)

3. The Court acknowledges that its opinion in State v. Wright, 107 N.J. 488 (1987), did not list the third element as a factor that must be proven for a refusal conviction. The Court explains, however, that this requirement was not an issue in Wright, which focused on whether a motorist could be convicted of refusal without proof of having actually operated a vehicle. After reviewing cases decided after Wright that addressed the reading of the standard statement, equivocal responses, and the burden of proof for refusals, and after considering the Attorney General's written guidelines listing a four-part analysis that includes a refusal to submit to the test after the officer reads the standard statement, the Court finds that refusal convictions require proof that an officer requested a motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The fact that motorists are deemed to have implied their consent does not alter that requirement. (Pp. 22—27)

4. The definition of the word "inform" includes the imparting of knowledge, therefore the directive that officers "inform," in the context of the implied consent and refusal statutes, means that they must convey information in a language the person speaks or understands. If people do not hear or understand English, some other effort must be made. Providing a written document to hearing-impaired individuals in a language they understand will ordinarily suffice. For non-English speakers, the Court defers to the MVC to fashion a proper remedy with the assistance of the Attorney General. The Court acknowledges that the Attorney General has already taken substantial steps, having informed the Court that it has arranged for certified translated versions of the standard statement to be prepared, in both written and audio form, in the nine foreign languages in which the MVC offers the written driver's test. The MVC is charged with determining what to do about the small percentage of additional motorists who would not be covered by this development. Given the need to collect samples quickly and the large number of potential languages involved, the Court understands it is not practical to expect that interpreters will be available on short notice and it does not construe the statutes to require that approach. (Pp. 27—37) 

5. The Court adds that it is not a defense to a refusal charge for drivers to claim that they were too drunk to understand the standard statement. It is not necessary for the State to prove that a driver actually understood the warnings on a subjective level. If properly informed in a language they speak or understand while sober, drivers can be convicted under the implied consent and refusal statutes. Defendants who claim that they do not speak or understand English must bear the burden of production and persuasion on that issue. (Pp. 37—39)

6. Here, it is undisputed that Marquez does not speak English. As a result, the officer's reading of the standard statement to him in English failed to inform him of the consequences of refusal. The Court therefore reverses his refusal conviction without reaching Marquez's constitutional due process claim. (P. 39)

The judgment of the Appellate Division is REVERSED, the portion of Marquez's sentence relating to his refusal conviction is VACATED, the stay of Marquez's DWI sentence is lifted, and the sentence will commence at once.

State v. Schmidt (A-35-10) Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional.

State v. Schmidt (A-35-10)

Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional.

Argued March 28, 2011 -- Decided May 26, 2011

RIVERA-SOTO, J., writing for the Court.

The question before the Court is whether a defendant s failure to provide proper breath samples of sufficient volume and length during the administration of a breath-based blood alcohol test, constituted an ambiguous or conditional response sufficient to require the reading of a second statement in addition to the Standard Statement under N.J.S.A. 39:4-50.2(e).

At police headquarters, defendant was read his Miranda warnings and the standard statement for operators of a motor vehicle. The Standard Statement explains, among other things, that the law requires that the defendant provide the required breath samples and that if he refuses, he will be issued a separate summons for the refusal. The statement further provides that any ambiguous or conditional response also will be treated as a refusal. In addition, the statement provides that, if a defendant remains silent; or states, or otherwise indicates, that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person; or if the response is ambiguous or conditional, in any respect whatsoever, the police officer administering the test shall read an additional statement.

After defendant consented to provide the required breath samples thereby obviating the need to read the Additional Statement Patrolman Carson of the Logan Township Police Department instructed [defendant] to take a deep breath and blow into the mouth piece with one long continuous breath. [Defendant] was advised to continue to blow until he was told to stop. He advised he understood. Twice defendant provided breath samples that were not of sufficient length and/or volume to generate a valid reading on the testing apparatus. Carson again instructed defendant and advised him that if he did not give a long continuous breath [, it] would be considered a refusal. When defendant again failed to do that, he was charged with refusal to give a breath sample, in violation of N.J.S.A. 39:4-50.2.

In the municipal court, defendant consented to be tried on a stipulated record consisting exclusively of the police report and the text of the entire Standard Statement. He nonetheless challenged the refusal charge, claiming that once the police officer had determined to charge [defendant] with the refusal . . . he was required to read the [Additional Statement]. The municipal court rejected that claim, stating that from the plain reading of the refusal paragraphs [in the Standard Statement], it doesn t call for the reading of the [Additional Statement]. Ultimately, the municipal court stayed defendant s sentence pending appeal.

Defendant filed a de novo appeal to the Law Division where he advanced a two-fold argument: One, whether [defendant s] actions were a refusal; and Two, whether, even if they were, if his actions did constitute a refusal, whether the State could prove it based on the fact they didn t read [the Additional Statement]. The Law Division rejected those arguments. The court explained that it did not find defendant s answer to be ambiguous or conditional and that, as a result, the State was not required to read the Additional Statement. The Law Division concluded that defendant did knowingly refuse to provide a proper sample and that this has been established beyond a reasonable doubt. Adjudging defendant guilty of refusal under N.J.S.A. 39:4-50.2, the Law Division imposed the same sentence as had the municipal court.

Defendant again appealed, and the Appellate Division reversed. The panel determined that defendant unambiguously consented to undergo an Alcotest after being read the first part of the Standard Statement. The panel determined, however, that the ambiguous circumstances required reading of the Additional Statement and that [s]o long as the [Additional] Statement is read and the defendant, without reasonable excuse, continues to produce inadequate breath samples, we find it to be within a police officer s discretion to terminate the [breath test] and charge the defendant with refusal. The Appellate Division therefore reversed defendant s conviction and sentence for refusing to submit to the breath test.

The Supreme Court granted the State s petition for certification. The Association of Criminal Defense Lawyers of New Jersey was granted leave to file a brief as amicus curiae.

HELD: Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, defendant remained among those who have consented and, hence, was not entitled to reading of the Additional Statement.

1. Central to the inquiry in this appeal are the dual questions of what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie. Save for penalties that may be imposed under N.J.S.A.39:4-50.4a, the substance of the standard statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch. Once the question of what must be disclosed in the Standard Statement is laid to rest, the corollary question of how much must be disclosed seems self-evident: provided the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied. At this Court s behest, the Executive Branch added the Additional Statement at issue in this appeal, but limited its application solely to those certain delineated instances, including where a defendant s response is ambiguous or conditional. Here, the Appellate Division concluded that defendant s thrice failed attempts to provide a sufficient breath sample rendered his earlier unambiguous and unconditional assent to submit to the breath test somehow ambiguous or conditional, thereby triggering the obligation to read the Additional Statement. Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, the Court is compelled to reject the Appellate Division s extension of the Additional Statement as unwarranted. Once consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant s unilateral actions aimed at defeating the testing process. To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme. (Pp. 15-24)

2. No due process notice considerations have been raised by the parties to this appeal in respect of defendant s failure to submit to the test and, hence, the Court need not address that question. That said, for the avoidance of future doubt and to provide consistency of administration, the inclusion in the main body of the Standard Statement of a notice to a DWI arrestee that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test is both reasonable and salutary. Therefore, the Court recommends to the Attorney General that the main text of the Standard Statement be supplemented to address such instances. (Pp. 24-26)

The judgment of the Appellate Division is REVERSED, the stay of defendant s sentence is VACATED, defendant s conviction and sentence are REINSTATED, and the case is REMANDED to the Law Division to implement defendant s sentence without additional delay.

JUDGE STERN (temporarily assigned) filed a separate, CONCURRING opinion, in which JUSTICES LONG and ALBIN join, stating that even when defendant unequivocally and unconditionally consented to give an adequate breath sample at the outset, once his efforts proved to be insufficient, he had to be further advised about his obligation to provide an adequate sample and the consequences of not doing so. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, and HOENS join in JUSTICE RIVERA-SOTO s opinion. JUDGE STERN, temporarily assigned, filed a separate concurring opinion, in which JUSTICES LONG and ALBIN join.