Opinion
DOCKET NO. A-0156-13T1
07-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TINA M. YILMAZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-05-13.
Rex J. Roldan argued the cause for appellant.
Dana R. Anton, Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Ms. Anton, on the brief). PER CURIAM
Following an in limine hearing pursuant to N.J.R.E. 104 at the conclusion of which the municipal court judge found that defendant Tina Yilmaz's responses to the standard statement constituted a refusal to give breath samples, defendant entered a conditional plea of guilty to a violation of the refusal statute, N.J.S.A. 39:4-50.2. She was sentenced to fines, penalties, costs, a two-year loss of license, forty-eight hours in the Intoxicated Driver Resource Center, and a one-year ignition interlock device to run after the two-year license loss. On de novo review, the Law Division upheld the municipal court's decision. This appeal followed. We affirm.
Defendant also pled guilty to careless driving, N.J.S.A. 39:497, while the remaining charges, driving while intoxicated, N.J.S.A. 39:4-50; failing to give proper signal, N.J.S.A. 39:4126; and failure to exhibit documents, N.J.S.A. 39:3-29, were dismissed pursuant to the plea agreement.
The parties having stipulated that defendant was operating the motor vehicle on the night in question, April 21, 2012, and further that there was probable cause to request a breath sample to determine whether defendant was driving under the influence of alcohol in violation of N.J.S.A. 39:4-50, the issue devolved into whether defendant's responses to the standard statement constituted a refusal to give breath samples in violation of N.J.S.A. 39:4-50.2. On this score, Officer Jackson Harrington of the Clayton Township Police Department testified that defendant was brought back to the police station following an arrest for driving while intoxicated where she was observed for the requisite twenty minutes. Thereafter, Officer Harrington read the standard statement to defendant. He requested that defendant take an Alcotest, after first advising her of her obligation to take the test, its purpose, and the consequences of a refusal. Specifically, defendant was informed that despite the Miranda warnings previously read to her, she had no right to remain silent or to consult with an attorney before taking the Alcotest or to delay giving a breath sample. Defendant was further advised that "[a]ny response . . . 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." Then, when expressly asked "will you submit the samples of your breath?" instead of answering either "yes" or "no," defendant responded "Do I have a choice?"
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant's non-response prompted Officer Harrington to read the additional text of the standard statement, specifically informing defendant that her
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.After once again asking whether she would submit to giving samples of her breath, defendant repeated "Do I have a choice?" The following colloquy then ensued:
Officer Harrington: Yes or no ma'am?
Defendant: Do I have freedom of speech? Do I have a choice? I guess, yes. What am I gonna say?
Officer Harrington: Yes or no, ma'am?
Defendant: Yes or no what?
Officer Harrington: Will you submit to giving samples of your breath?
Defendant: I guess I don't have a choice, then if I don't submit then I'm guilty anyway. Is that what you're telling me? Is that what you're telling me?
Officer Harrington: I'm telling you that . . . I'm asking you will you submit to giving us samples of your breath?
Defendant: And I'm saying . . . I'm asking you what you were saying exactly. Regardless if I submit or I don't submit to it, it's the same outcome, am I correct?
The colloquy continued for a while, during which defendant inquired whether she "could still go home" if she refuses, and both Officer Harrington and Sergeant Divito, reminded her that she needs to give a "yes" or "no" answer. Undaunted, defendant persisted in engaging the officers in further conversation:
Defendant: No, he didn't read it to me twice. He read me one thing and then he read me another thing.
Sergeant Divito: Then . . . and that's all he had to do. That's all he has to tell you. The rest is on . . .
Defendant: I'm not refusing!
Sergeant Divito: . . . the rest is on you.
Defendant: I'm not refusing! But don't I have a right to my decision?
Sergeant Divito: It says . . . ma'am . . . ma'am . . . ma'am . . . In one of his statements he read you was you had to make a decision yes or no and that's all it is. Anything ambiguous to it is a . . . is a no. So it's either a yes or no . . . answer. Okay.
Defendant: Right. I don't know what to tell you. I don't know what to tell you. Do you want to do a breathalyzer? Go ahead. I'm not refusing. I don't think I had too much to drink. I know I . . . I know I only had four beers. But I didn't refuse. Why are you ignoring me?
Officer Harrington: I gave you several opportunities to say yes or no and you gave me "do I have a choice," "I guess yes," "I don't know," "give me a minute to think." That's not yes or no. Yes or no. That's cut and dry.
Defendant: Are you done? I mean . . . is there . . . do I have a choice to say "yeah, I'll take it." And Him [pointing to Sergeant Divito] . . . with the papers? Does he have a right to say that?
Officer Harrington: To say what?
Defendant: That I refused?
Officer Harrington: Well, all . . . none of your answers were yes or no so that's pretty much a refusal.
Defendant: No, it's not.
After viewing the videotape of defendant's interaction with the officers on the evening in question, the municipal court judge found defendant's responses were an equivocation and amounted to a violation of the refusal statute. The judge reasoned:
So, we're really looking at the response. And, so the way I look at this, and the cases are not crystal clear, is the first answer would be, "I guess yes." And, if I take that as not equivocation — by the way, I think that the word guess can be an equivocation. I often deal with that when I'm asking questions for a factual basis. I guess it's true. And, I'll — I'll really hammer home. Well, did you do X, Y or Z, as I must, under Rule 7:6-2.
. . . .
I always take that as an equivocation, but giving the benefit of the doubt that that -- that that is a yes, and a clear and unequivocal yes, you only have lengthy colloquy with many questions, as you're pointing out as in response to Ptlm. Harrington's invitation please ask questions, but then I have an "I don't know," and to me that phrase is so significant as an equivocation, and so it seems to me the way the higher Courts look at this if you say, yes, flat out, yes, I will take it, and then a few seconds later say I don't know or, you know, I have reservations or something, to me that is
less than the unequivocal yes required by the statute.
And, so that statement, which I heard very clearly, takes me beyond a reasonable doubt that there was something less than an unequivocal yes as required by the standard under State v. Widmaier . . . .
On de novo review, the Law Division judge, after hearing arguments of counsel, viewing the videotape and considering the record anew, found defendant guilty of refusal, stating "anything other than a[n] unequivocal yes, is a refusal[,]" and further explaining that defendant's answers contained enough ambiguity to fall below the required unequivocal "yes." The judge reasoned:
It sounded like he — he certainly was attempting to get her to focus in on that specific response. So, there is a review of the evidence; and, again, the [c]ourt had the opportunity to review the actual same tape that the [municipal court judge] reviewed.This appeal followed.
It appears that although we both struggled with it, that the case law is clear that anything other than the unequivocal yes, after being informed of the consequences of the refusal results in a[n] issuance of a ticket for the refusal itself. And, that refusal cannot legally be cured.
So, I do find that there's enough there because of the ambiguity in the responses. And, even though she says, "I guess, yes," and then goes on to question, "Can I go home?" And, things of that nature after saying that it is not an unequivocal yes.
In order to find defendant committed "a violation for refusing to submit to a breathalyzer test" the following three elements must be satisfied: (1) that an arresting officer has probable cause to believe that the accused operated a vehicle while under the influence of alcohol[;] (2) an arrest of the accused for driving while under the influence of alcohol[;] and (3) the accused's refusal to submit to a breathalyzer test." State v. Bernhardt, 245 N.J. Super. 210, 215 (App. Div.), certif. denied, 126 N.J. 323 (1991). In this appeal, defendant contends only that the third element was not satisfied because she did not refuse to take the Alcotest. We disagree.
The strong public policy embodied in New Jersey's implied consent law, N.J.S.A. 39:4-50.2, "is the removal of drunk drivers from our highways." Id. at 219. To that end, "'anything 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 Bernhardt, supra, 245 N.J. Super. at 219). "The occasion is not one for debate, maneuver or negotiation, but rather for a simple 'yes' or 'no' to the officer's request." Bernhardt, supra, 245 N.J. Super. at 219 (internal quotation marks omitted). A defendant's "conditional or ambiguous response to a police officer's final demand to submit to the breathalyzer test constitutes a violation of the refusal statute whether or not the [defendant] intended to refuse to take the test. Widmaier, supra, 157 N.J. at 498. Thus, "a defendant's subjective intent is irrelevant in determining whether the defendant's responses to the officer constitute a refusal to take the test." Ibid. Moreover, a defendant does not have the right to delay taking a breath test. Ibid.
To "ensure that defendants understand the mandatory nature of the breathalyzer test," its purpose, the consequences of a refusal, "and the need for unequivocal, affirmative consent[,]" the Legislature requires officers to read a standard statement to anyone subjected to the test pursuant to N.J.S.A. 39:4-50.2(e). Id. at 489. Here, Officer Harrington read aloud paragraphs one through eleven of the 'standard statement' prepared by the Director of the Motor Vehicle Commission as required pursuant to N.J.S.A. 39:4-50.2(e). Defendant's response to the reading of the first section was, "Do I have a choice?" Finding this response unsatisfactory and ambiguous, the officer read aloud the full text of the additional statement, to which defendant once again responded "Do I have a choice? I guess, yes. What am I gonna say." We agree with both the municipal court judge and the Law Division judge that this response is not an unequivocal, unconditional, affirmative assent to the officer's request and therefore amounts to a violation of the refusal statute.
Defendant nevertheless contends that her later comments to the effect "I am not refusing" effectively cured any initial refusal. Again we disagree. "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. We adopted the bright line rule in Bernhardt, "consistent with a growing majority of other jurisdictions with a similar implied consent law, which precludes a defendant from curing a refusal." Id. at 217. "A bright line rule removes, rather than creates, 'obstacles impeding the efficient and successful prosecution of those who drink and drive.'" Id. at 218 (quoting State v. Tischio, 107 N.J. 504, 514 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988)). It also recognizes that delays in performing breath tests would lead to inaccurate results and eviscerate the very purpose of our drunk driving laws. See Corrado, supra, 184 N.J. Super. at 569 (holding that "the policy of our implied consent law would be violated" if defendant was allowed to initially refuse, and later consent). Indeed, "[o]nce the violation has been committed, the accused cannot 'undo' the violation . . . ." Bernhardt, supra, 245 N.J. Super. at 218. "Prosecutions for drunk driving and for failure to give a breath sample are quasi-criminal proceedings and therefore notions of curing defects . . . have no application absent a clear expression to the contrary by the Legislature." Id. at 219.
Consequently, once defendant again responded "Do I have a choice? I guess, yes. What am I gonna say[,]" the offense of refusal was complete and her belated insistence otherwise, after further engagement with the officers and still not amounting to the requisite unequivocal, affirmative consent, does not cure the violation.
Contrary to defendant's contention first raised at oral argument, the officer neither misread nor materially deviated from the standard statement. See State v. O'Driscoll, 215 N.J. 461, 476 (2013). Nothing in the statement read to defendant, including the allowance for any questions, detracted from the statutory purpose "to inform motorists and impel compliance." Ibid. We consider defendant's opposing argument to be totally devoid of any merit. R. 2:11-3(e)(2).
--------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION