Opinion
DOCKET NO. A-2094-13T1
06-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KIRSTEN STURGES, Defendant-Appellant.
Joshua H. Reinitz argued the cause for appellant (Iacullo Martino, LLC, attorneys; Mr. Reinitz, of counsel and on the brief). Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-051. Joshua H. Reinitz argued the cause for appellant (Iacullo Martino, LLC, attorneys; Mr. Reinitz, of counsel and on the brief). Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief). PER CURIAM
Defendant appeals from her conviction for refusal to consent to provide a breath sample, N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a. We affirm.
Although defendant was convicted of driving while intoxicated in municipal court, she was acquitted of that charge following a de novo trial in the Law Division.
Chester Borough Police Officer Timothy Carey arrested defendant for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and transported her to police headquarters. She was read the Standard Statement authorized by N.J.S.A. 39:4-50.2(e). Defendant declined to submit to the breathalyzer test. The Standard Statement was read to her a second time. After defendant declined to submit samples of her breath again, Officer Carey recorded her refusal. Shortly thereafter, defendant asked to take the breathalyzer test, but the officer declined to administer the test because her refusal had already been recorded.
N.J. Attorney General's Standard Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.4(e)) (revised & eff. July 1,2012), available at http://www.njsp.org/divorg/invest/pdf/adtu/070912_dwi_standardstatement.pdf (Standard Statement). --------
Among the witnesses at the trial in municipal court was Detective Keith Anderson, who arrived on the scene after defendant was arrested. When asked how many times defendant was given the opportunity to take the breathalyzer test, Detective Anderson testified:
She was given the initial warning, she refused. She was given the additional warning, she refused. We advised her that it would . . . it could help or not help . . . help her if she took the test. Again we gave her several opportunities and she continued to refuse.
Defendant contends that the advice from the officers that the breathalyzer test "could help or not help" was a "material" misrepresentation of the law that precludes her conviction. We disagree.
The implied consent law, N.J.S.A. 39:4-50.2(a), establishes the following principle:
Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this 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 . . . .
The Legislature also established the following requirement for providing notice to a suspected drunk driver:
The police officer shall . . . inform the person arrested of the consequences of refusing to submit to such test in accordance with [N. J.S.A. 39:4-50.4a]. A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.
[N. J.S.A. 39:4-50.2(e).]
Here, reading the Standard Statement satisfied the statutory requirement regarding the consequences of refusing to submit to the breathalyzer test. See State v. O'Driscoll, 215 N.J. 461, 476 (2013); State v. Schmidt, 206 N.J. 71, 82-83 (2011). The question is whether the additional comment that the test could help or hurt defendant negated the material facts presented to defendant in the Standard Statement.
In O'Driscoll, the police read an outdated Standard Statement to the defendant following his DWI arrest. O'Driscoll, supra, 215 N.J. at 467-68. The newer version of the Standard Statement, which was not read to the defendant, differed from the version read to him "in three ways: the minimum period for revocation of one's license was seven months, not six; the minimum fine was $300, not $250; and the maximum fine was $2000, not $1000." Id. at 468. The defendant contended that his conviction must be reversed because he was not adequately informed of the consequences of his refusal. See id. at 470-71.
The Court considered whether the error regarding the penalties was "material in light of the statutory purpose to inform motorists and impel compliance" with the implied consent law and therefore fatal to a conviction on a refusal charge. Id. at 476. The Court determined that the analysis should focus on "whether the State has informed the defendant of material facts." Id. at 477.
Under that approach, discrepancies that would not have influenced a reasonable driver's choice to submit to a breath test would not be considered material and would not require reversal of a conviction for refusal. On the other hand, 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. To decide whether a deviation from the standard statement is material under that standard requires a case-by-case evaluation of the facts.
[Id. at 477-78 (emphasis added).]
Although the officer in O'Driscoll misstated the minimum period of license suspension and the minimum fine, he did advise the defendant that if he refused to submit a sample of his breath, his license could be revoked for up to twenty years. Id. at 478-79. The Court concluded that the errors regarding the minimum period of license suspension and the fines were "inconsequential," id. at 479, and stated:
The officer read the standard statement and informed defendant both that the breath test was mandatory and that serious consequences — revocation of his license for a period from six months up to twenty years — would result if he did not submit to the test. In other words, as the Legislature intended, the officer used the standard statement to inform defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply. It
is difficult to see how the minor discrepancies in this case could have influenced that decision. Like the Appellate Division, we are "highly doubtful" that the errors reasonably could have affected defendant's choice. Because the errors were not material, we find that the State satisfied the elements of the refusal statute.
[Ibid. (emphasis added).]
Here, defendant was advised of the material facts contained in the Standard Statement. We consider the additional statement to be inconsequential. Contrary to defendant's assertion, the statement that taking the test could help or hurt defendant was not untrue. At a minimum, taking the test would protect defendant from a refusal charge. At best, a favorable result would dispose of the DWI charge. And, if the result was unfavorable, it would certainly hurt her by providing evidence to support a DWI conviction. Even more important, however, the statement did not negate the information provided in the Standard Statement, which is sufficient to "impel[] a reasonable person to comply." Ibid. Viewing the totality of the circumstances, the record shows that the officers gave defendant ample opportunity to submit to the breathalyzer test and took no action to attempt to dissuade her from doing so. We conclude that defendant was provided the material facts necessary to sustain a conviction for refusal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION