DWI Refusal notice withstands challenge
State v Quintero __ NJ Super __(App. Div. 2016)
The court affirm defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement.
The court hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, The court note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2186-13T4
STATE OF NEW JERSEY,
Before Judges Hoffman, Leone and Whipple.1
On appeal from Superior Court of New Jersey,
Law Division, Union County, Municipal Appeal
The opinion of the court was delivered byHOFFMAN, J.A.D.
1 Judge Whipple did not participate in oral argument. She joins
the opinion with counsel's consent. R. 2:13-2(b).
January 27, 2016
APPROVED FOR PUBLICATION
January 27, 2016
Defendant appeals from her de novo conviction for refusal
to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant
argues that her conviction should be vacated because the
Attorney General's current standard statement under N.J.S.A.
39:4-50.2(e) is fundamentally deficient for not specifying the
mandatory minimum penalties for refusal. For the reasons that
follow, we affirm.
On December 7, 2012, defendant consumed several vodka and
cranberry juice cocktails before driving her vehicle in Roselle
Park. Defendant's tire blew out, but she continued driving on
the tire rim until the Roselle Park Police finally stopped her.
After defendant failed street sobriety tests, the officer
transported her to police headquarters. There, defendant
refused to submit to a breath test, even after the officer read
the standard statement2 indicating the consequences if she did
not take the breath test.
The officer charged defendant with driving while
intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a
2 The full text of the "N.J. Attorney General's Standard
Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.2(e))
(rev. & eff. July 1, 2012)" can be found at
breath test, N.J.S.A. 39:4-50.4a,3 and careless driving, N.J.S.A.
39:4-97. In the Roselle Park Municipal Court on February 28,
2013, defendant pled guilty to DWI and entered a conditional
guilty plea to the refusal charge, reserving her right to
challenge the sufficiency of the standard statement on appeal.4
On the DWI charge, the court imposed a $406 fine, $33 in court
costs, a $200 DWI assessment, a $75 Safe Neighborhood Services
Fund assessment, a $50 Violent Crimes Compensation Board
penalty, twelve hours of Intoxicated Driver Resource Center
classes, and a three-month license suspension to run concurrent
with the refusal sentence. On the refusal charge, the court
sentenced defendant to a $506 fine, a $100 DWI assessment, $33
in court costs, seven-month loss of license, and six months with
an ignition interlock. The court stayed the refusal portion of
the sentence pending de novo appeal to the Law Division.
On October 28, 2013, Judge Regina Caulfield found defendant
guilty and imposed the same sentence for defendant's refusal
conviction. The judge memorialized her decision in a November
27, 2013 order, which further stayed the refusal sentence
pending this appeal.
3 The e-ticket for this charge incorrectly listed the violated
statute as N.J.S.A. 39:4-50.2; however, this mistake has not
been raised as an issue in the instant appeal.
4 The court dismissed the careless driving charge.
Defendant presents the following issue in this appeal:
THE CHARGE OF REFUSAL TO SUBMIT IS
FUNDAMENTALLY FLAWED. THE NEW JERSEY MOTOR
VEHICLE STANDARD STATEMENT READ TO QUINTERO
FAILED TO "INFORM [QUINTERO] OF THE
CONSEQUENCES OF REFUSING TO SUBMIT" AS
REQUIRED BY [N.J.S.A. 39:4-50.2(e)].
On this appeal, we do not review the fact-findings of the
Law Division, which are generally entitled to our deference.
State v. Johnson, 42 N.J. 146, 158-59 (1964). Rather, we review
the court's legal determination regarding the sufficiency of the
standard statement. Where, as here, the issues turn on purely
legal interpretations, our review is plenary. State v. Adubato,
420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209
N.J. 430 (2012).
New Jersey's drunk-driving legislation is designed "to curb
the senseless havoc and destruction caused by intoxicated
drivers." State v. Marquez, 202 N.J. 485, 496 (2010) (quoting
State v. Tischio, 107 N.J. 504, 512 (1987)). "To improve
enforcement efforts and address the high rate of refusal by
motorists who declined to submit to blood-alcohol tests, the
Legislature in 1966 enacted the implied consent law, N.J.S.A.
39:4-50.2, and the refusal law, N.J.S.A. 39:4-50.4a." State v.
O'Driscoll, 215 N.J. 461, 472-73 (2013) (citing Marquez, supra,
202 N.J. at 497). Accordingly, all motorists on New Jersey
roads are "deemed to have given . . . consent" to a breath test
under the implied consent law. Id. at 473 (citing L. 1966, c.
142, § 2 (codified as amended at N.J.S.A. 39:4-50.2)).
The implied consent law was amended in 1977 to require that
"[a] standard statement, prepared by the chief administrator,
shall be read by the police officer to the person under arrest"
to inform him or her of the consequences of refusing to submit
to a breath test. N.J.S.A. 39:4-50.2(e). In 2009, the
responsibility for the promulgation of that statement was
transferred to the Attorney General. 41 N.J.R. 2825(a). Our
Supreme Court has explained that "the refusal statute requires
officers to request motor vehicle operators to submit to a
breath test; the implied consent statute tells officers how to
make that request." Marquez, supra, 202 N.J. at 501. Marquez
also identified the elements of 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
[Id. at 503 (citations omitted).]
Pursuant to the implied consent law, N.J.S.A. 39:4-50.2(e),
the Attorney General's current standard statement (revised and
effective July 1, 2012), to be read to motor vehicle operators
to inform them of the consequences of refusing to submit to a
breath test, provides, in pertinent part:
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 a court finds you guilty of the
refusal, you will be subject to various
penalties, including license revocation
of 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
Defendant contends that the Attorney General's standard
statement is defective because it does not inform motorists of
the mandatory minimum penalties. In particular, defendant
argues that the standard statement "does not adequately explain
and delineate the penalties for a refusal conviction" because
the statement explains the license loss exposure as "license
revocation of up to 20 years." This is problematic, defendant
argues, because "defendant was not told that she would face a
license loss for a minimum of seven months" and that "up to 20
years can mean anywhere between 0 days to 20 years." Similarly,
defendant argues that the standard statement is flawed because
it explains that defendant will be subject to "a fine of up to
$2000" while failing to mention that a defendant's first refusal
offense is "not less than $300 or more than $500 for a first
offense." See N.J.S.A. 39:4-50.4a. The statement is similarly
flawed, defendant continues, because it merely mentions the
"installation of an ignition interlock," while the refusal
statute mandates an ignition interlock for a first offender for
"not less than six months or more than one year." See N.J.S.A.
Our Supreme Court has previously recognized that "as a
question of law, the authority to define the contents of the
Standard Statement vests in the Executive Branch, as delegated
by the Legislative Branch." State v. Schmidt, 206 N.J. 71, 87
(2011); see also Marquez, supra, 202 N.J. at 511 ("The executive
branch, and not the courts, is best-equipped to respond to those
concerns and still satisfy the statutory command to inform
. . . motorists of the consequences of refus[al] . . . .
We defer to the executive branch agency . . . to fashion a proper
remedy . . . .") (internal quotation marks and citation omitted).
Recently the issue of whether the standard statement was
defective, "because it does not inform drivers of the mandatory
minimum period of time their license will be suspended if they
refuse," was brought to our Court's attention. O'Driscoll,
supra, 215 N.J. at 480. However, because this issue was raised
by an amicus curiae, the Court in its discretion "[did] not
opine in any way on the content of the current statement." Id.
at 479-80. O'Driscoll, however, still can illuminate the
current issues and provide some guidance with respect to the
standard statement at issue.
In O'Driscoll, our Court reinstated a DWI defendant's
refusal conviction after determining that the misinformation
provided to him was inconsequential and consisted of minor
discrepancies that were not material to the defendant's decision
to refuse the breath test. Id. at 479-80. In particular, the
police officer mistakenly read from an outdated form and told
the defendant that if he refused, the minimum period of license
revocation was six months, not seven; the minimum fine was $250,
not $300; and the maximum fine was $1000, not $2000. Id. at
465. The officer, however, did correctly tell defendant that
his license could be revoked for up to twenty years. Ibid. The
Court held that the officer's mistakes were inconsequential, and
that the officer informed defendant "of the consequences of
refusal in a manner that should have impelled a reasonable
person to comply." Id. at 479. In particular, the Court
continued, it was "difficult to see how the minor discrepancies
in this case could have influenced [defendant's] decision."
Ibid. As such, "courts are to 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. An immaterial variation from the standard form does
not require reversal of a conviction for refusal." Id. at 466.
With this guidance, we agree with Judge Caulfield that the
standard statement is sufficient, and we affirm defendant's
refusal conviction. Defendant's argument that she was not given
an accurate picture of the penalties she faced as a first-time
offender lacks merit. Rather, as Judge Caulfield observed:
It defies logic to assume that defendant[,]
having refused a breath test knowing that
she could be fined up to $2,000 and lose her
license for 20 years[,] would have submitted
to a . . . breath test, if she was told her
license might be revoked for only seven
months with a fine of only $500.
We are satisfied that the current standard statement satisfies
the statutory mandate — that is, informing motorists and
impelling compliance — by adequately informing drivers of the
maximum potential license revocation and fine, and the
possibility of ignition interlock, that they face for refusal.
In so ruling, we note that adding other details, including the
differing mandatory minimum and maximum penalties for first
offenders, second offenders, and certain third offenders, may
run the risk of submerging the most significant penalties in
those details. Such a statement could confuse persons who are
suspected of being under the influence, whose number of prior
offenses may be unclear, and dilute the persuasive effect that
is a central purpose of the standard statement.
Moreover, defendant, having refused after being informed of
the maximum penalties, has not shown that she "reasonably would
have made a different choice and submitted to a breath test" had
additional information been provided. O'Driscoll, supra, 215
N.J. at 466. It is implausible that defendant would have
submitted to the breath test if informed of mandatory minimums
for a first offender. Accordingly, we conclude that the current
standard statement is not defective for failing to inform
drivers of the mandatory minimum penalties for refusal. The
standard statement provides sufficient information for drivers
to make an objectively reasonable choice on whether to submit to
a breath test.