Opinion
DOCKET NO. A-2683-12T4
07-30-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LELAN D. HURST, Defendant-Appellant.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Michael V. Troso, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Parrillo, Guadagno, and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 09-12. Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Michael V. Troso, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). PER CURIAM
Defendant Lelan D. Hurst appeals his conviction of refusing to submit to a breath test, N.J.S.A. 39:4-50.4(a), after being arrested for driving while intoxicated (DWI). On appeal, defendant claims he was not properly advised of his rights; that the officer failed to comply with the implied consent law; and the State failed to prove he was able to provide breath samples. Defendant also challenges his sentence. After careful consideration of defendant's arguments, we reject these challenges and affirm.
I.
On April 29, 2011, just before 1:00 a.m., Logan Township Patrolman Kevin Cleary was dispatched to investigate a report of a vehicle that ran off the road. On arriving at the scene, Cleary observed defendant standing next to his Ford pickup truck which was "facing eastbound in a westbound lane in a ditch."
Cleary spoke with defendant and smelled alcohol on his breath. He described defendant as "staggering, his eyes were glassy. He didn't have on a shirt at the time and his clothes were a little disheveled." Cleary asked defendant if he needed medical attention and he responded that he did not. When Cleary asked defendant how much he had to drink, he replied "too much."
Cleary attempted to administer field sobriety tests but defendant was either unwilling or unable to complete any of them. Cleary arrested defendant and transported him to the police station. While en route to the station, defendant told Cleary that he was sick and vomited in the police vehicle.
Upon arriving at the police station, the proceedings were recorded on videotape. Cleary advised defendant of his Miranda rights and read the standard statement required by N.J.S.A. 39:4-50.2(e), including the supplemental instruction to be given when a defendant fails to consent to giving a breath sample. When defendant was asked if he would submit breath samples, he initially failed to respond. Cleary then reread the portion of the instruction indicating that a defendant's rights to remain silent and consult with an attorney do not apply to the taking of breath samples. When Cleary again asked defendant if he would submit breath samples, he responded that he would like to be taken to a hospital capable of doing the tests. Cleary then informed defendant that he was certified to conduct the test. Defendant responded that he was not refusing to provide samples, but he wanted to do so at a hospital. Cleary then read the entire instruction to defendant a third time. When Cleary finished, he again asked defendant if he would submit a breath sample and defendant unequivocally replied, "No."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was charged with refusal to submit a breath sample, DWI, and reckless driving. At trial before the municipal court, defendant argued his symptoms were caused by shellfish poisoning. He testified that he was at a restaurant earlier in the night, where he drank two beers, a rum and coke, and ate "drunken clams." He also claimed he felt extreme headaches, nausea, flushed feelings of hot and cold, and tingling in his extremities.
Defendant called Dr. Lance Gooberman, an expert in the field of medicine and alcohol and drug addiction, who testified that defendant suffered from shellfish poisoning that night and was not intoxicated.
The municipal court found defendant guilty of refusal and not guilty of DWI and reckless driving. Defendant was sentenced as a second offender to a two-year driver's license suspension and was required to install an ignition interlock device for the length of the suspension and for one year thereafter.
Defendant appealed. Following a trial de novo, the Law Division judge found defendant guilty of refusing to submit a breath sample and imposed the same sentence. Although the municipal court stayed defendant's sentence, the Law Division denied defendant's motion to continue the stay pending appeal.
Defendant raises the following challenges to his conviction:
I.
BECAUSE OFFICER CLEARY DID NOT INFORM MR. HURST THAT FAILURE TO SUBMIT TO BREATH TESTING WOULD ALSO RESULT IN HIM BEING REQUIRED TO INSTALL AN IGNITION INTERLOCK DEVICE, MR. HURST WAS NOT PROPERLY ADVISED OF HIS RIGHTS UNDER THE STATUTE, AND THE REFUSAL CHARGE MUST BE DISMISSED.
II.
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT OFFICER CLEARY COMPLIED WITH THE REQUIREMENTS OF THE IMPLIED CONSENT LAW.
III.
THE STATE FAILED TO PROVE MR. HURST WAS ABLE TO PROVIDE VALID SAMPLES OF HIS BREATH, WHILE ILL AND UNDER CIRCUMSTANCES WHERE MEDICAL ATTENTION SHOULD HAVE BEEN RENDERED IMMEDIATELY.
IV.
IF MR. HURST IS GUILTY OF REFUSAL HE MUST BE SENTENCED AS A FIRST OFFENDER.
II.
Appellate review of municipal court convictions is exceedingly narrow. State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146 (1964)). The Supreme Court explained that an appellate court:
should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.
The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. This involves consideration of the proofs as a whole . . . . When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.
But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.
[Johnson, supra, 42 N.J. at 161-62 (internal citations omitted).]
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted).
The appellate court must give "deference" to the ability of the factfinder to judge credibility. Locurto, supra, 157 N.J. at 471 ("It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.").
"[T]he municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [the DWI statute], shall refuse to submit to a [breath test] when requested to do so[.]" N.J.S.A. 39:4-50.4a(a).
[T]he implied consent law, N.J.S.A. 39:4-50.2, . . . (a) provides that by taking to the State's roadways, drivers impliedly consent to submit to a breath test to measure the level of alcohol in their blood, and (b) further requires that they be informed of the consequences of refusing to submit to such a test[.]There are
[State v. Marquez, 202 N.J. 485, 490 (2010).]
four essential elements to sustain 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 the test.
[Id. at 503.]
The police officer shall inform the arrestee of the consequences of refusing to submit to such test by reading a standard statement, prepared by the Motor Vehicle Commissioner, to the arrestee. N.J.S.A. 39:4-50.2(e).
"'[A]nything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so.'" State v. Widmaier, 157 N.J. 475, 497 (1999) (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.), certif. denied, 126 N.J. 323 (1991)). "A breathalyzer test is not an occasion 'for debate, maneuver or negotiation, but rather for a simple "yes" or "no" to the officer's request.'" Ibid. (quoting Bernhardt, supra, 245 N.J. Super. at 219). "Once the defendant says anything except an unequivocal 'yes' to the officer's request after the officer has informed the defendant of the consequences of a refusal, the defendant cannot legally cure the refusal." Bernhardt, supra, 245 N.J. Super. at 219. "Any other result would undermine law enforcement's ability to remove intoxicated drivers from the roadways." Widmaier, supra, 157 N.J. at 497.
It is no defense to a refusal charge for drivers to claim that they were too drunk to understand the standard statement. In other words, it is not necessary for the State to prove that a driver actually understood the warnings on a subjective level. If properly informed in a language they speak or understand while sober, drivers can be convicted under the implied consent and refusal statutes.
[Marquez, supra, 202 N.J. at 513.]
A.
Defendant first claims that he was not informed by Cleary that conviction on his refusal charge would result in the requirement to install an ignition interlock device, and therefore his refusal charge must be dismissed. We disagree.
The Law Division rejected this argument in its written opinion:
The Court also finds that the appellant was adequately informed of the rights and penalties attendant to a refusal under N.J.S.A. 39:4-50.4a, and as required under O'Driscoll, despite the fact that the appellant was not specifically warned about the possible penalty of an ignition interlock device. The Appellate Court in O'Driscoll agreed that "some" deviation from the most current standard statement would not require a reversal in every case. The Appellate Court in O'Driscoll instead reversed the defendant's refusal conviction because the police officer in that case read from an outdated standard statement. ThatAt issue here is the third prong of the Marquez test to sustain a refusal conviction: whether "the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so[.]" See Marquez, supra, 202 N.J. at 503.
standard statement completely confused the amount in fines the defendant would have owed for a refusal despite the fact that a more recent standard statement was available which properly delineated the fines at that time.
Further, no mention is made in the O'Driscoll case of the need to include, in the standard statements, a specific reference to the installation of an ignition interlock device for the purposes of sustaining a refusal conviction. That is particularly notable considering that the case was decided in 2012, well after that penalty had been legislatively mandated under N.J.S.A. 39:4-50.17, and the defendant in that case was ordered to install such a device by both the Municipal Court and the Superior Court, Law Division, on de novo appeal.
Here, unlike in O'Driscoll, Officer Cleary read from the April 2004 standard statement which outlined the correct fines and penalties associated with a refusal. Admittedly, the April 2004 standard statement does not specifically mention the ignition interlock device penalty. However, if the failure to warn a defendant of that particular penalty would upset convictions for refusals in which police officers read from the April 2004 standard statement, then every such conviction would necessarily be reversed for that failure, which is a result the Appellate Court in O'Driscoll specifically agreed was not required.
Defendant relies on our opinion in State v. O'Driscoll, No. A-4341-10 (App. Div. March 1, 2012), which was reversed by the Supreme Court, 215 N.J. 461 (2013), eight days after defendant filed his brief. In O'Driscoll, we reversed a defendant's conviction for refusal to submit to a chemical breath test because the standard statement read to him "provided inaccurate information about the penalties he faced and therefore, did not clearly delineate the penalties for a refusal." O'Driscoll, supra, slip op. at 14-15.
The Supreme Court rejected our conclusion and held
[c]ourts should consider whether an error in the reading of the standard statement is material in light of the statutory purpose to inform motorists and impel compliance. To do so, 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.
[O'Driscoll, supra, 215 N.J. at 466.]
N.J.S.A. 39:4-50.17, which requires the installation of an interlock device for a refusal conviction, became effective January 1, 2001, for convictions committed on or after September 30, 2000. The Attorney General amended the standard statement, effective July 1, 2012, to include an instruction about the installation of an interlock device.
Cleary read to defendant from the April 2004 standard statement, which the Law Division noted "outlined the correct fines and penalties associated with a refusal." As defendant notes, the statement does not warn about the ignition interlock device penalty. However, this is not an error or mistake by the officer, as the interlock warning was not added until the July 1, 2012 revision of the standard statement.
Here, as in O'Driscoll, defendant was warned that "serious consequences" would result from a refusal. See O'Driscoll, supra, 215 N.J. at 479. There is simply no evidence to support defendant's claim that he "would have made a different choice and submitted to a breath test" had the officer informed him about the interlock device.
B.
Defendant next argues that the State failed to prove beyond a reasonable doubt that Cleary complied with the requirements of the implied consent law, specifically that the correct standard statement form was read. Again, we disagree.
The Law Division rejected the argument in its written opinion:
A wrinkle presents itself in the question of which statement was read or
recited to the appellant in the police station. . . .
The Court finds that the correct standard statement, that is the standard statement for operating a personal vehicle, and not the standard statement for operating a commercial vehicle, was read to the appellant. The record indicates that the Municipal Court Judge had an opportunity to watch a videotape in which the appellant was seen listening to Officer Cleary's recitation of the standard statement. The Municipal Court Judge specifically acknowledged on the record that it was the personal vehicle standard statement that was read to the appellant. Sufficient evidence therefore exists, through the Municipal Court Judge's observations of both the video of Officer Cleary's recitation of the personal vehicle standard statement, and Officer Cleary's testimony at trial, to support the charge that the appellant was read the personal vehicle standard statement beyond a reasonable doubt.
Defendant claims that there is insufficient proof that he was read the correct standard statement by Cleary. However, the videotape of the police station proceedings does not support his argument. As the Law Division noted, the municipal court relied on that videotape in finding that "the correct statement" was read to defendant. The Law Division found the municipal court's observation of the video and Cleary's testimony to be sufficient evidence to uphold the municipal court's finding.
We "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Elders, supra, 192 N.J. at 243 (internal quotations marks omitted). We find no reason to disturb the decision of the Law Division.
C.
Defendant next argues that the State failed to prove that he was able to physically take the breath test or provide a valid sample due to his medical condition, and therefore his refusal conviction should be overturned.
Again, the Law Division rejected this argument in its written opinion:
The appellant argues that the State could not show that the appellant was capable of either taking or consenting to the Alcotest. He alleges that he was too sick to take the Alcotest, and was physically unable to perform the test, and further, that the appellant should not have been asked to take the test in the first place. He argues that Officer Cleary should have taken the appellant to the hospital rather than keep him at the police station to take the Alcotest, pursuant to police protocol. The Court does not find this argument to be persuasive.
First, the [c]ourt finds that Officer Cleary acted reasonably under the circumstances. Officer Cleary asked the appellant prior to the appellant's arrest if he needed medical attention and the appellant responded "no." The appellant made no indication that he was sick from something other than alcohol intoxication or that he needed medical assistance at that time. The appellant only requested to go to the hospital at some point after being
requested by Officer Cleary to take the Alcotest. Officer Cleary asked the appellant if he wanted to go to the hospital because of the Alcotest and the appellant responded "yes."
Second, as stated above, [t]he court finds that the appellant was not only capable of taking the Alcotest, but he also had proper control over his mental faculties such that he was aware of and could properly consent to Officer Cleary's request to take the Alcotest. The appellant suggests, on the contrary that he was effectively incapacitated because of his illness such that he was incapable of consenting to the Alcotest. However, the evidence shows that that although the appellant displayed what would commonly be associated with drunken behavior (e.g., slurred speech, vomiting and automotive debility), which was found by the Municipal Court to be the result of food poisoning, here, the Court finds that the illness the appellant was suffering from was not so debilitating so as to make the appellant incapable of consenting to an Alcotest.
The evidence in the record shows that the appellant, for the most part, complied with police instructions. Before the appellant was transported to the station, Officer Cleary attempted to administer several field sobriety tests to determine whether the appellant's motor functions were impaired. The appellant explained at that time, for the walk-and-turn test, that his foot was some length shorter than the other, making that test impossible for him. At the station, when confronted with the request to take the Alcotest, the appellant appeared to have had enough prescience of mind to understand that he was in legal peril, and thus requested a lawyer. After being read the additional paragraph from the standard statement, the appellant explicitly refused
to take the Alcotest. The [c]ourt finds that the appellant's reasoning skills, as evidenced by his communications to Officer Cleary at the scene of the appellant's disabled vehicle, and at the police station, were not incoherent; the appellant was not delirious nor legally incapacitated such that he could not consent to the Alcotest request by Officer Cleary.
Defendant argues that he "was in no condition to have the standard statement read to him" and therefore "doubt exists that he was able to physically take the test or understand the process in his condition." Defendant concedes that there are no reported cases on this issue, but asks us to follow a similar result from a 1979 administrative law decision, Division of Motor Vehicles v. Massuk, 2 N.J.A.R. 408 (Div. of Motor Vehicles 1979). According to defendant, the defendant in Massuk fainted or blacked out and therefore was found not guilty on his refusal charge.
Defendant failed to provide a copy of this unpublished opinion to the court in contravention of Rule 2:6-1(a)(1)(H), and Rule 1:36-3.
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Aside from the fact that Massuk has no precedential value, see Rule 1:36-3, it is clearly distinguishable. As the Law Division noted, defendant was specifically asked if he needed medical attention and declined. The Law Division found that defendant's "reasoning skills, as evidenced by his communications to Officer Cleary at the scene of the appellant's disabled vehicle, and at the police station, were not incoherent; the appellant was not delirious nor legally incapacitated such that he could not consent to the Alcotest request by Officer Cleary." Defendant also had refused to provide breath samples and had the "prescience of mind to understand that he was in legal peril, and thus requested a lawyer."
This court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Elders, supra, 192 N.J. at 243 (internal quotation marks omitted). We find no reason to disturb the decision on appeal.
D.
Defendant argues that "the State must prove by clear and convincing evidence, that during a 20 minute [un]interrupted observation period prior to the breath testing, that the defendant does not regurgitate or place anything into the mouth that would compromise the reliability of the test results[,]" according to State v. Ugrovics, 410 N.J. Super. 482, 489-90 (2009) certif. denied, 202 N.J. 346 (2010). This argument was not raised before the Law Division and we decline to address it here. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).
We note that the Law Division correctly found that "the offense of committing a refusal was complete at the time the [defendant] unequivocally refused to take the test. What happened after the offense was completed is irrelevant."
E.
Finally, defendant argues that he should have been sentenced as a first DWI offender. The Law Division rejected the argument in its written opinion:
The [c]ourt finds that the appellant was properly sentenced as a second offender in accord with N.J.S.A. 39:4-50. First, prior DWI convictions are deemed prior violations for the purposes of the enhanced refusal penalty. According to the record, the appellant has a drunk driving conviction recorded in November 2003 on his driver's abstract. That conviction is not outside the ten (10) year range for the appellant to be entitled to the 10-year step-down provision under N.J.S.A. 39:4-50. Thus, the appellant was properly sentenced under the enhanced refusal penalty provision as a second offender.N.J.S.A. 30:4-50(a), provides in pertinent part:
The appellant argues that his November 2003 conviction actually stems from an incident occurring as far back as September 1990. The alleged thirteen (13) year lapse between the appellant's offense and subsequent conviction was explained as the appellant's consistent failure to appear.
The [c]ourt is not persuaded by the appellant's argument. First, the step-down provision is measured from the time of the appellant's conviction, and one exists for the appellant within ten (10) years of the appellant's instant offense. Second, the [c]ourt does not believe that the appellant should be rewarded for delaying his prior conviction for thirteen (13) years by making an exception to the rule based on a technical argument that is nevertheless without merit. The Municipal Court correctly sentenced the appellant as a second offender.
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.
Defendant was convicted for DWI on September 3, 1990, but failed to appear for sentencing for thirteen years, until November 12, 2003. The issue here is whether the current refusal occurred more than 10 years after the first offense. Defendant relies on State v. Bischoff, 232 N.J. Super. 515 (App. Div. 1989), in arguing that the relevant date for determining eligibility for the step-down provision of N.J.S.A. 39:4-50(a) is the date of the offense, not the date of the conviction. In Bischoff, the defendant argued that he should have been eligible for the step-down provision because his second conviction occurred more than ten years after his first conviction, although the date of his second offense was less than ten years from his first conviction. Bischoff, supra, 232 N.J. Super. at 516-17. We held that the defendant was properly sentenced as a second offender even though his conviction occurred more than ten years after his prior conviction, as the clear focus of the statute was to deter conduct which caused "havoc and destruction" by placing drivers on notice that second offenses would not be countenanced. Id. at 517-18.
The salutary purpose of the second-offender statute is to establish a "deterrent and preventive sanction" to be employed against those who flagrantly disregard the welfare of the public by continuing to operate a motor vehicle while drunk after having suffered a prior conviction. State v. Sturn, 119 N.J. Super. 80, 82-83 (App. Div.), certif. denied, 61 N.J. 157 (1972). Thus, the clear focus of the statute is to deter conduct which causes "havoc and destruction" by placing drivers on notice that second offenses shall not be countenanced.
Defendant's interpretation of the statute would lead to disparate and unfair results. The defendant with a prior conviction who has his subsequent drunk-driving charge tried expeditiously and consequently is convicted within ten years of his prior offense would pay the price by being
sentenced as a second offender. The subsequent offender whose trial is delayed because of either defense counsel's pretrial tactics or calendar inefficiency until after ten years from his prior offense would be rewarded with a first-offender sentence. Such a result frustrates the legislative will.
[Id. at 518.]
Defendant, whose first sentencing was delayed by his own failure to appear, should not be rewarded for those actions by being sentenced as a first offender.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION