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.
