State v. James L. Rogers NJ Appellate Division Decided May 3, 2019 (Not Approved for Publication)

State v. James L. Rogers

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Pertinent Facts:

The defendant was brought to the police department and advised he will have to submit to the Alcotest.

Both at the scene and after he was taken to the police station, defendant was uncooperative and confrontational. On the charge for refusal, Bittner noted that

[d]uring the processing for the drunk driving charge, he refused to answer the standard statement. I went on to read the second part of the standard statement and he refused to answer from there . . . .  He was completely unresponsive to the standard statement for the drunk driving charge. We read it to him.He was completely unresponsive to the standard statement for the drunk driving charge. We read it to him.

Bittner clarified that defendant “just smiled” and did not respond when Bittner read the “standard statement” to him. After Bittner read the “second part of the statement” to him, defendant did not respond. Bittner concluded defendant was refusing to take the breathalyzer test. When pressed how defendant communicated he was unwilling to submit to such test, Bittner testified:

He didn’t respond to the – he did not provide a yes answer when he was required to take the test. He just did not respond. And we read him the second paragraph, stating that anything other than a yes basically would constitute a refusal, and he did not respond to that either.

Given his uncooperative conduct, Bittner assumed it would be futile to attempt to perform any psychophysical tests as well, and none was conducted.

In the second law division de novo trial the court found:

On the refusal charge, the judge found Bittner read defendant “the standard statement for the drunk driving charges.” The judge also noted that Bittner “testified that he made the defendant aware that anything other than a ‘yes’ would basically constitute a refusal, however, the defendant did not respond.” We note Bittner did not quite testify to the latter, but he did testify that he read the “second paragraph” of the standard statement to defendant and, according to Bittner, the second paragraph he read to defendant essentially stated that “anything other than a ‘yes’ basically would constitute a refusal.”

The Law Division judge determined defendant’s responses after the two statements were read to him were sufficient to establish that he refused to take the breathalyzer test. Specifically, the judge noted defendant merely smiled and, thus, was unresponsive after “statement number one was read” and also did not respond after Bittner read the “second paragraph” to him.

We first address defendant’s contention there is insufficient evidence the police read the standard statement to him before he refused to take the breathalyzer test, warranting a reversal of his conviction for refusal. N.J.S.A. 39:4-50.4a provides in pertinent part:

1. [T]he municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [N.J.S.A.] 39:4-50

. . . , shall refuse to submit to a test provided for in . . . ([N.J.S.A.] 39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years . . . .

N.J.S.A. 39:4-50.2, referred to as the “implied consent” statute, reads in relevant part:

(a) Any person who operates a motor vehicle on any public road, street or highway . . . State 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 in accordance with the provisions of this act . . . and 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 . . . .

(e) No chemical test, as provided in this section, or specimen necessary thereto, 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 [C.39:4-50.4a] of this amendatory and supplementary act. A standard statement, prepared by the chief administrator[2], shall be read by the police officer to the person under arrest.

Statutory Interpretation

“Refusal” has been clearly addressed in State v. Marquez, 202 N.J. 485 (2010). The Marquez Court held the elements the State must prove to show a defendant is guilty of refusal are:

(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.

Attorney General “shall promulgate guidelines concerning the prosecution of” driving while intoxicated and refusal violations). [Id. at 503 (emphasis supplied) (first citing N.J.S.A. 39:4-50.2(e); then citing N.J.S.A. 39:4-50.4a).]

Here, defendant does not contest the State proved the first, second, and fourth elements of the refusal statute, but he contends the State failed to prove the third. He maintains there is no proof of what the police read to him. Therefore, he argues, there is no proof the police read to him the standard statement required by N.J.S.A. 39:4-50.2(e) before he refused to take the breathalyzer test and, accordingly, the State did not prove the third element of this offense.

As noted, pursuant to N.J.S.A. 39:4-50.2, those required to provide a breath sample are statutorily entitled to have a “standard statement” prepared by the Attorney General read to them by the police, so they will understand the ramifications of refusing to submit to a breathalyzer test. Marquez, 202 N.J. at 506 n.8. “That statement . . . differentiates between those who consent to providing the required breath sample and all others, and it requires that an additional statement ‘be read aloud only if, after all other warnings have been provided, a person detained for driving while intoxicated either conditionally consents or ambiguously declines to provide a breath sample.'” State v. Schmidt, 206 N.J. 71, 73-74 (2011) (quoting State v. Spell, 196 N.J. 537, 539 (2008)).

Here, defendant was charged with refusal in 2008. The standard statement in effect in 2008 was issued on April 26, 2004, and provided in pertinent part:

1. You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs[.] . . .
2. The law requires you to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
3. Any warnings previously given to you concerning your right to remain silent, and your right to consult with an attorney, do not apply to the taking of breath samples, and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician, or anyone else present, for the purpose of taking the breath samples.
4. If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.
5. Any response from you that is ambiguous or conditional, in any respect, to your giving consent to the taking of breath samples will be treated as a refusal to submit to breath testing.
6. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.
7. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.
8. I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?
9. (ADDITIONAL INSTRUCTIONS FOR POLICE OFFICER)
10. IF THE PERSON: 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, THEN THE POLICE OFFICER SHALL READ THE FOLLOWING ADDITIONAL STATEMENT:
11. FULL TEXT OF ADDITIONAL STATEMENT FOLLOWS:

I previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.

16. Once again, I ask you, will you submit to giving samples of your breath?

[New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle – N.J.S.A. 39:4-50.2(e) (rev. & eff. April 26, 2004) (emphasis supplied).]

As stated, defendant contends there is no proof the standard statement was read to him; accordingly, the State failed to prove all of the elements necessary to establish defendant was guilty of refusal. We disagree.

It was undisputed that Bittner read the “standard statement” to defendant, who “just smiled.” Because of that response, Bittner read “the second part of the standard statement” to defendant, who did not respond at all. The Law Division judge determined defendant’s reaction after the standard

statement was read to him and his lack of response after the “second part of the 19 standard statement” was read to him established defendant was refusing to take the breathalyzer test.

First, we note the standard statement, which included the “additional statement” – referred to by Bittner as the “second part of the standard statement” – had been in existence for over four-and-one-half years by the time Bittner read such statements to defendant. Given the length of time the standard statement and additional statement had been in use, the court reasonably accepted Bittner’s testimony that he read both the standard statement and second part of the standard statement as substantial credible evidence establishing beyond a reasonable doubt that the requisite statements were read to defendant prior to his refusal.

Moreover, during his testimony, the references Bittner made to the content of those statements unequivocally establish Bittner read the correct statements to defendant. As noted, Bittner testified that, after he read the standard statement to him, defendant merely responded with a smile. Because defendant did not respond by consenting to the breath test, Bittner read “the second part of the standard statement.” Bittner referred to the “second part of the standard statement” as the “second paragraph,” and identified “the second paragraph” as that part of the document where it states “anything other than a ‘yes’ basically would constitute a refusal.”

It is implicit from Bittner’s testimony that, after he read paragraph eleven of the standard statement to defendant, which elicited the smile from defendant – an ambiguous response –, Bittner followed the instruction in paragraph thirteen and read paragraph fifteen to him. In pertinent part paragraph fifteen states:

Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.

Thereafter, because he declined to respond, Bittner charged defendant with refusal. See Marquez, 202 N.J. at 504 (quoting State v. Widmaier, 157 N.J. 475, 497 (1999) (“[A]nything substantially short of an unconditional, unequivocal assent to an officer’s request that the arrested motorist take the [breath] test constitutes a refusal to do so.”)).

To be sure, the better practice may have been to have had Bittner identify the specific document he read to defendant and to seek the admission of such document into evidence. However, the municipal prosecutor’s failure to do so in this case was not fatal to the State’s case on the charge of refusal, for the reasons stated.