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.
