: : : : : : : : : : : BRIEF OF AMICUS CURIAE NEW JERSEY STATE BAR ASSOCIATION

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1 STATE OF NEW JERSEY Plaintiff-Appellant, v. WILLIAM O DRISCOLL, Defendant-Respondent : : : : : : : : : : : SUPREME COURT OF NEW JERSEY Docket No BRIEF OF AMICUS CURIAE NEW JERSEY STATE BAR ASSOCIATION Counsel: Kevin P. McCann, Esq., President, New Jersey State Bar Association 1 Constitution Square New Brunswick, NJ On the Brief: Jeffrey Evan Gold, Esq. Gold & Associates, P.C Marlton Pike E Cherry Hill, NJ Kimberly Yonta Aronow, Esq. Law Offices of Kimberly A. Yonta 111 Livingston Avenue New Brunswick, NJ i

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii iv STATEMENT OF FACTS AND PROCEDURAL HISTORY QUESTIONS PRESENTED LEGAL ARGUMENT PAGE I. SINCE THE PLAIN AND UNAMBIGUOUS LANGUAGE OF THE REFUSAL STATUTE REQUIRES THAT THE CURRENT STANDARD STATEMENT SHALL BE READ BY THE POLICE OFFICER TO THE PERSON UNDER ARREST AND SINCE THAT ADMITTEDLY DID NOT OCCUR HERE, THE STATE DID NOT MEET ITS BURDEN OF PROOF UNDER THE STATUTE II. WHILE SOME MINOR LANGUAGE VARIATION MAY NOT PROVE FATAL TO A STATE S CASE, THE APPELLATE DIVISION WAS CORRECT IN FINDING THAT THE DIFFERENCE IN ACTUAL MANDATORY SENTENCING WAS NOT SUPERFLUOUS TO THE PLAIN LANGUAGE REQUIRING THAT THE POLICE OFFICE SHALL INFORM THE PERSON ARRESTED OF THE CONSEQUENCES OF REFUSING III. EVEN IF THE POLICE OFFICER READS THE CORRECT STANDARD FORM (UNLIKE HERE) THE STATUTORY ELEMENT OF PROOF ALSO REQUIRES THAT THE OFFICER ACTUALLY CONVEY THE CONSEQUENCES OF REFUSING, AND WHEN THAT DOES NOT OCCUR, THE ELEMENT OF PROOF FAILS IV. THE CURRENT STANDARD STATEMENT, PROMULGATED AFTER THE DECISION BELOW, NOT ONLY DOES NOT SATISFY THE STATUTORY REQUIREMENT THAT THE FORM CONVEY THE CONSEQUENCES OF REFUSING, BUT ASTONISHINGLY IT ACTUALLY MISINFORMS A SUBJECT THAT THERE ARE NO MANDATORY MINIMUM PENALTIES FOR REFUSING, THEREBY INCREASING THE LIKELIHOOD OF REFUSALS IN DIRECT CONTRAVENTION OF THE VERY PURPOSE OF READING THE FORM i

3 CONCLUSION TABLE OF APPENDIX State v. William O Driscoll, Docket No. A T2, Decided March 1, Aa1 to Aa15 Standard (M.V.C.) Implied Consent Statement (January 21, 2004) Aa16 Standard (M.V.C.) Implied Consent Statement (April 26, 2004) Aa17 Standard (A.G.) Implied Consent Statement (July 1, 2012). Aa18 ii

4 TABLE OF AUTHORITIES CASES Chasin v. Montclair State Univ., 159 N.J. 418, , 732 A.2d 457 (1999) Craster v. Bd. Of Comm rs of Newark, 9 N.J. 225, 230, 87 A.2d 721 (1952) DiProspero v. Penn, 183 N.J. 477, 492 (2005) , 12 Frugis v. Bracigliano, 177 N.J. 250, 280, 827 A.2d 1040 (2003) In re Closing of Jamesburg High School, 83 N.J. 540, 548, 416 A.2d 896 (1980) Lane v. Holderman, 23 N.J. 304, 313, 129 A.2d 8 (1957) Lozano v. Frank DeLuca Const., 178 N.J. 513, 522, 842 A.2d 156 (2004) O Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002) State v. Cummings, 184 N.J. 84, 96 (2005) State v. Duffy, 348 N.J. Super. (App Div. 2002) , 10 State v Marquez, 202 N.J. 485 (2010) , 14, 17 State v. Schmidt, 206 N.J. 71, no State v. Widmaier, 157 N.J. 475 (1999) , 11, 20, 22 State v. Wright, 107 N.J. at 490, 527 A.2d iii

5 STATUTES N.J.S.A. 39: , 15, 16 N.J.S.A. 39: , 12, 17 N.J.S.A. 39:4-50.2a N.J.S.A. 39:4-50.2c N.J.S.A. 39:4-50.2(e) N.J.S.A. 39:4-50.2e N.J.S.A. 39:4-50-4(a) N.J.S.A. 39:4-50.4a(a) , 10 N.J.S.A. 39:4-50.4a , 19, 15 OTHER SOURCES 41 N.J.R. 2825(a) iv

6 TABLE OF APPENDIX State v. William O Driscoll, Docket No. A T2, Decided March 1, Aa1 to Aa15 Standard (M.V.C.) Implied Consent Statement (January 21, 2004) Aa16 Standard (M.V.C.) Implied Consent Statement (April 26, 2004) Aa17 Standard (A.G.) Implied Consent Statement (July 1, 2012). Aa18 i

7 APPENDIX

8 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A T2 STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM O'DRISCOLL, Defendant-Appellant. Submitted January 24, Decided March 1, 2012 PER CURIAM Before Judges Yannotti and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No Law Offices of Jonathan F. Marshall, attorneys for appellant (Colin E. Bonus, on the brief). Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). Defendant appeals from his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.4a and N.J.S.A. 39:4-50.2; and possessing an open container of alcohol in an

9 automobile, N.J.S.A. 39:4-51b. We reverse the refusal conviction and affirm the remaining convictions. The essential facts are set forth in detail in the oral opinion of the Law Division judge and need not be repeated here. We note the following salient facts: At approximately 12:20 a.m. on November 15, 2009, Harding Township Police Officer Michael Gromek stopped defendant's SUV after observing it travel over the center lines of the road for several seconds and later straddle the center lines for about two-tenths of a mile. When Officer Gromek approached the vehicle, defendant opened the wrong car window at first and slurred his words in conversation with the officer. Officer Gromek observed that defendant's eyes were "very" watery, "quite" bloodshot, and his eyelids were "very" droopy. He detected an odor of alcohol coming from the car. The officer asked defendant to perform certain tests while he was still in his automobile, including reciting the alphabet from the letter "E" to the letter "P" without singing. Officer Gromek also asked defendant to count backwards, starting with number fortyfive (45) and ending with number twenty-three (23). Defendant failed to correctly perform either task and, in each case, spoke very slowly, slurring his words. After defendant was unable to satisfactorily perform a finger dexterity test, Officer Gromek 2 A T2

10 asked defendant to exit his vehicle to perform field sobriety tests. Defendant grasped the driver's side of the vehicle to maintain his balance and, when instructed to walk between his vehicle and the officer's, he swayed, staggered and kept his feet wide apart for balance. Officer Gromek instructed defendant on how to perform two field sobriety tests, the oneleg stand test and the walk-and-turn test. Officer Gromek asked defendant if he understood the instructions and defendant replied that he did. In each case, defendant was unable to perform the test satisfactorily, manifesting difficulty in maintaining his balance in the one-leg stand test and in following instructions. Defendant repeatedly denied drinking any alcohol that evening. However, when he gave permission to Officer Gromek to move his vehicle, defendant told him there was an open bottle of alcohol on the front passenger floor. Officer Gromek observed an open bottle of Chandon California Brut Classic champagne that was almost empty. Officer Gromek smelled the bottle and believed it to be champagne. Defendant was placed under arrest and transported back to police headquarters. Officer Gromek smelled a strong odor of an alcoholic beverage from defendant. 3 A T2

11 Defendant was taken to the processing room where Officer Gromek began a twenty-minute observation of defendant. Officer Gromek read the Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e), revised effective January 21, 2004 (the January 2004 Standard Statement), and asked defendant to submit samples of his breath. Defendant responded by stating, in slurred speech, "I don't know what to do." The officer proceeded to read defendant the additional statement on the bottom of the form and again asked defendant if he would submit samples of his breath. Defendant again stated, "I don't know what to do." Officer Gromek advised defendant of his Miranda warnings. 1 Defendant replied, "I don't know what to do[,]" and refused to sign a copy of the Miranda form. Officer Gromek then prepared a drinking/driving questionnaire with defendant. Defendant stated he suffered from anxiety and depression, that he was taking several prescription medications, including Ambien, and that he had last taken Ambien at 11:30 p.m., shortly before he left his house. When asked if he needed medical attention, defendant declined an ambulance or doctor. Although Officer Gromek testified that defendant 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4 A T2

12 continually slurred his words, he stated defendant did not appear confused in any way. He appeared to understand all of the officer's questions and carried on a normal conversation. The only defense witness was Gary Lage, Ph.D., who testified as an expert in the fields of toxicology and pharmacology. Dr. Lage's understanding of the facts was derived from reading the arrest report, the investigation report, the drinking/driving questionnaire and the drinking/driving report. Dr. Lage did not speak to defendant and did not know if defendant had consumed any alcohol or other medications that evening. He did know there was an odor of an alcoholic beverage on the defendant's breath. However, based upon defendant's statement that he had taken Ambien and the description of his behavior, Dr. Lage opined that defendant "was operating the motor vehicle at the time that he had taken [Ambien], that it was an involuntary action, that he had no knowledge at the time, which would be totally consistent with the pharmacology and toxicology of this medication." Dr. Lage acknowledged that the FDA has a label on Ambien warning against consuming alcohol or other drugs with Ambien. He testified that "there is no doubt from a pharmacological standpoint that... any alcohol, even a very, very small alcohol consumption would exacerbate the effects... of the [Ambien]." 5 A T2

13 In an extensive oral opinion, the municipal court judge found defendant guilty of DWI, refusal to submit to a breathalyzer, possessing an open container and failure to keep to the right, N.J.S.A. 39:4-82. A charge of reckless driving was dismissed. Defendant was sentenced on the DWI charge to three months' loss of his driver's license, twelve hours in I.D.R.C., six months' use of an ignition interlock device, $306 fine, $33 court costs, $50 V.C.C.B., $75 S.N.F. and $200 DWI surcharge. On the refusal, defendant was sentenced to seven months' loss of his driver's license consecutive to the three months on the DWI charge, $306 fine, $33 court costs and $100 DWI surcharge. The suspension of defendant's driving privileges was stayed pending appeal. On the open container charge, defendant was fined $206 and $33 court costs. Defendant was fined $106 and $33 court costs on the failure to keep right charge. Defendant appealed his convictions for DWI, refusal and possessing an open container. Following a trial de novo on the record, the Law Division found defendant guilty on all three charges. The court sentenced defendant to the same periods of license suspension but ordered that they be concurrent. The court also imposed the same fines, penalties and court costs as the municipal court. 6 A T2

14 Defendant presents the following issues in this appeal: POINT I DR. LAGE'S EXPERT TESTIMONY RAISED REASONABLE DOUBT ON THE ISSUE OF MR. O'DRISCOLL'S CONSCIOUSNESS, AND THE LAW DIVISION JUDGE FAILED TO GIVE DUE DEFERENCE TO THE MUNICIPAL COURT JUDGE'S DETERMINATION ON LAGE'S CREDIBILITY; AS A MATTER OF LAW, MR. O'DRISCOLL WAS ENTITLED TO ACQUITTAL ON ALL OF THE CHARGES. A. APPELLATE DIVISION STANDARD OF REVIEW B. THE UNCONSCIOUSNESS (SLEEPWALKING) DEFENSE IS WELL ESTABLISHED IN LAW; IT WAS THE STATE'S BURDEN TO DISPROVE THIS DEFENSE BEYOND A REASONABLE DOUBT C. DR. LAGE'S CREDIBILITY AND THE BURDEN OF PROOF D. WHEN REASONABLE DOUBT IS ESTABLISHED, THE DEFENDANT IS ENTITLED TO ACQUITTAL; THE LOWER COURT IMPROPERLY SHIFTED THE BURDEN TO THE DEFENDANT POINT II THE POLICE DID NOT READ THE VALID N.J.S.A. 39:4-50.2(e) STATEMENT TO MR. O'DRISCOLL; SINCE THE REFUSAL PENALTIES WERE NOT DELINEATED, THE REFUSAL CHARGE SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW POINT III THE STATE DID NOT EVEN PRODUCE THE ALLEGED BOTTLE, LET ALONE DID THE 7 A T2

15 STATE PRODUCE EVIDENCE OF ITS CONTENTS; SINCE THE STATE DID NOT PROVE THE ELEMENTS OF N.J.S.A. 39:4-51b, THE OPEN-CONTAINER CHARGE SHOULD HAVE BEEN DISMISSED We review the action of the Law Division to determine whether its de novo findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). When, as here, both the municipal court and the Superior Court enter "'concurrent judgments on purely factual issues,'" those findings should not be disturbed "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We discern no such error here as to the DWI and open container convictions. There were only two witnesses at the trial - Officer Gromek and Dr. Lage. As a result, Officer Gromek's testimony regarding the events was uncontested. The municipal court found him to be "an extremely credible witness[,]" a conclusion shared by the Law Division upon de novo review. Officer Gromek's description of defendant's physical appearance, slurred speech, the odor of alcohol, erratic driving and poor performance on sobriety tests all supported the conclusion that defendant was driving while 8 A T2

16 intoxicated. See State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002). No reasonable doubt was created by Dr. Lage's testimony. The municipal court judge acknowledged his credentials in the area of pharmacology and toxicology but explicitly rejected the factual basis for his opinion. While the court accepted the conclusion that defendant was under the influence of Ambien, the judge also found that defendant drank alcohol. The court found support for that conclusion in the officer's testimony that there was an odor of alcohol from defendant and from his vehicle and the recovery of the almost empty bottle of champagne. In evaluating the weight to be given to his testimony, the judge noted that Dr. Lage had "no idea if the defendant had been drinking any alcohol that evening" although he acknowledged that "even a small amount [of alcohol] would exacerbate the potential effects of Ambien." The judge further noted that Dr. Lage "indicated he cannot differentiate the difference [between] being under the influence of Ambien or... alcohol[.]" The Law Division judge also noted the deficiencies in Dr. Lage's testimony and explicitly rejected his opinion: I have to say that this Court does not put great weight or value on the testimony of the expert in this case. I just overall find that it's not believable and I reject it. I don't find that it is credible. The facts upon which it was based I find are 9 A T2

17 insufficient in light of the totality of all of the facts and circumstances in the case. We are satisfied that the Law Division's finding that defendant was operating a motor vehicle while under the influence of an intoxicating liquor was supported by sufficient credible evidence in the record. Further, it was unrefuted that defendant told Officer Gromek that there was an open bottle of alcohol on the front passenger floor of his vehicle and that the officer recovered an open bottle of Chandon Brut Classic champagne that was almost empty from defendant's car. Defendant's argument that there was insufficient proof he possessed an open container of alcohol therefore lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We next turn to defendant's argument that his conviction for refusal must be reversed. To sustain a conviction for refusal under N.J.S.A. 39:4-50.4a(a), the State must prove each of the following elements beyond a reasonable doubt: (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. 10 A T2

18 [State v. Marquez, 202 N.J. 485, 503 (2010).] Defendant argues that the State failed to satisfy the third of these elements, specifically failing to inform him of the consequences of refusing to submit to the chemical breath test because the arresting officer read the January 2004 Standard Statement as opposed to the version of that Statement revised as of April 26, 2004 (the April 2004 Standard Statement). Although we do not agree that some deviation from the most current standard statement will require a reversal in every case, we are constrained to agree that a reversal is required under the circumstances here. N.J.S.A. 39:4-50.2(a), the "Implied Consent Law," provides that any person who operates a motor vehicle on a public or quasi-public road in New Jersey "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 the alcohol in his blood[.]" Yet, the statute also requires "that the taking of samples is made in accordance with the provisions of this act[.]" Ibid. (emphasis added). Subparagraph (e) requires the police officer to "inform the person arrested of the consequences of refusing to submit to such test... [and 11 A T2

19 a] standard statement, prepared by the chief administrator, 2 shall be read by the police officer to the person under arrest." The "'principal purpose'" of this mandate "'is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge.'" Marquez, supra, 202 N.J. at 508 (quoting State v. Badessa, 185 N.J. 303, 314 (2005)); see also State v. Widmaier, 157 N.J. 475, 489 (1999) (by requiring that a standard statement be read, the Legislature "provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent"); State v. Wright, 107 N.J. 488, 499 (1987). The difference between the statement read to defendant and the revised statement in effect at the time of his arrest lies in the minimum license revocation period and in the minimum and maximum fines that could be imposed. The January 2004 Standard Statement read to defendant stated that if convicted of refusal, your license to operate a motor vehicle will be revoked by the court for a period of no 2 Effective August 24, 2009, the responsibility for the promulgation of standard statements regarding implied consent to chemical breath test statutes was transferred from the Chief Administrator of the Motor Vehicle Commission to the Attorney General. See 41 N.J.R. 2825(a) (Aug. 3, 2009); see also State v. Schmidt, 206 N.J. 71, 74 n.1 (2011) 12 A T2

20 less than six months and no more than 20 years. The Court will also fine you a sum of no less than $250 and no more than $1,000 for your refusal conviction. [(Emphasis added).] The April 2004 Standard Statement reflected amendments to the statute, stating that, if convicted of refusal, your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months and 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. [(Emphasis added).] It is highly doubtful that defendant would have been more likely to feel impelled to give a breath sample if advised that the minimum penalty entailed one additional month's revocation and an additional fifty dollars for a fine and that he faced the possibility of a $2,000 fine rather than a $1,000 fine. However, we judge the adequacy of the statement read to him not based upon its likelihood to affect his actions but rather, whether it satisfied the legislative mandate. In Marquez, supra, the Supreme Court stated that "reading the standard statement is an element of a refusal offense." 202 N.J. at 506 n.8. This conclusion is supported by the plain language of the statute. N.J.S.A. 39:4-50.4a(a) sets forth the elements that must be proven by a preponderance of the evidence 13 A T2

21 to sustain a refusal conviction, which include "whether the defendant refused to submit to the test upon request of the officer[.]" The statute states explicitly, "if these elements of the violation are not established, no conviction shall issue." In addressing the question of what "must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie[,]" the Supreme Court stated that the answer "is provided in the refusal statute itself[,]" which "explicitly provides" that the police officer inform the person arrested of the consequences of refusing to submit to the test and requires that a "'standard statement,'" now prepared by the Attorney General, "'shall be read by the police officer to the person under arrest.'" Schmidt, supra at 82 (quoting N.J.S.A. 39:4-50.2(e)). The Court concluded that, to satisfy the statutory mandate, the Standard Statement must "clearly delineate[] the penalties for a refusal." Id. at Here, the fatal flaw in the Standard Statement read to defendant was that it provided inaccurate information about the penalties he faced and therefore, did not clearly delineate the penalties for a refusal. Pursuant to Schmidt, the Standard Statement did not satisfy the statutory mandate and, 14 A T2

22 consequently, this essential element of a refusal conviction was not proven. We therefore reverse defendant's conviction for refusal to submit to a chemical breath test and affirm his convictions for DWI and possessing an open container of alcohol in an automobile. Affirmed in part and reversed in part. 15 A T2

23

24

25 N.J. ATTORNEY GENERAL S STANDARD STATEMENT FOR MOTOR VEHICLE OPERATORS (N.J.S.A. 39:4-50.2(e)) (revised & effective July 1, 2012) Enter Defendant s Name The police officer shall read the following: 1. You have been arrested for driving while intoxicated. N.J.S.A. 39: The law requires you to submit samples of your breath for the purpose of testing to determine alcohol content. 3. A record of the taking of the breath samples, including the test results, will be made. Upon your request, a copy of that record will be made available to you. 4. After you have provided samples of your breath for testing, you have the right, at your own expense, to have a person or physician of your own selection take independent samples of your breath, blood or urine for independent testing. 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 guilty. 7. You have no legal right to have an attorney, physician or anyone else present for the purpose of taking the breath samples. You have no legal right to refuse to give, or delay giving, samples of your breath. 8. Any response from you that is ambiguous or conditional, in any respect, to my request that you provide breath samples, will be treated as a refusal to submit to breath testing. Even if you agree to take the test, but then do not follow my instructions, do not properly perform the test, or do not provide sufficient breath samples, I will charge you with refusal to submit to breath testing. 9. I repeat, the law requires you to submit samples of your breath for testing. Will you submit the samples of your breath? Answer If the arrested person does not respond, or gives any ambiguous or conditional answer short of an unequivocal yes, the police officer shall read the following. Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than yes, I will charge you with refusal. Now, I ask you again, will you submit to breath testing? Answer

26 STATEMENT OF FACTS AND PROCEDURAL HISTORY The New Jersey State Bar Association (hereinafter the NJSBA ) adopts the Statements of Facts and Procedure of the parties with the addition of the following. The Appellate Division opinion (Aa2 Aa16) in this matter was most often cited around the state not for the facts presented therein, as those facts are indeed very rare and not likely to often occur, but instead to address other more widespread problems. First, it was cited to address the critical issue that the April 26, 2004 form being read statewide did not contain the mandatory interlock device penalties which were required as of January 14, 2010 by N.J.S.A. 39: The interlock device is required to be paid for by the defendant and to be installed for the entire period of driver s license suspension and then for an additional mandatory six months to one year after a first offense, or one to three years after the suspension period for a second or subsequent offense. N.J.S.A. 1 For a first refusal offense, the mandatory penalties are 7-12 months loss of license or 1-2 years loss of license if the offense occurred in a school zone, $300-$500 fine or $600-$1,000 if a school zone, plus 6 month to 1 year mandatory interlock and 12 hours with a 48 hour period mandatory at the Intoxicated Drivers Resource Center (IDRC). A second offense has 2 year mandatory loss of license, 4 years if a school zone, $500 -$1,000 fine, $1,000 -$2,000 if a school zone, 1-3 years of mandatory interlock device. A third or subsequent offense carries a mandatory 1 year of license, $1,000 fine, $2,000 for a school zone, ad interlock for 1 3 years. N.J.S.A. 39:4-50.4a. 1

27 39: et seq. The subject must blow into it to start a vehicle, and periodically stop the vehicle and blow into the device to continue driving. The device is set at a much lower threshold than DWI, i.e..04 BAC, and reports any violation electronically. Our member attorneys have reported that, throughout the State, the O Driscoll opinion is being cited for the position that a defendant who was not read the correct penalties, i.e., to include the interlock, even if that defendant was read the then-current form, could not be convicted of Refusal. Although beyond the actual facts in this case (where the wrong form was read) (Aa17), this reading of the opinion below was, and is, seen by many courts as the logical conclusion of the reasoning laid out in that opinion. Some trial courts found that the State could not meet its burden of proof as it had not fully conveyed the penalties for Refusal to the subject as required by statute. Other courts, however, were persuaded only that the sentence (argued in the alternative by the State here as to six months suspension vs. seven months, see State s Brief, pp ), could not include the otherwise mandatory (but not advised) interlock penalties. Still other courts did not see the opinion as persuasive on either the issue of conviction or sentence. On July 1, 2012, the Attorney General (who now has the prescribed duty to change the forms, rather than the Director of 2

28 the Motor Vehicle Commission (MVC), by virtue of 41 N.J.R. 2825(a)), issued a revised standard Refusal statement. (Aa19) While it was expected that the new form would quell the controversy, it actually causes as much, or more, controversy than it quelled. It is an abbreviated form compared to its predecessors, which had been drafted by the Director of the MVC and not the Attorney General. In its abbreviation, however, the form misstates the Refusal penalties, ignoring that there are certain mandatory penalties for Refusal. The language in the new form leads any subject to conclude (even a sober one) that the court will have discretion to impose no mandatory minimum penalties. The new cursory form now merely states:...you will be subject to various penalties, including license revocation up to 20 years, a fine up to $2000, installation of an interlock and referral to an Intoxicated Drivers Resource Center. In fact, however, there are mandatory minimum sentences in all of these categories. The driver s license revocation is a minimum of 7 months and no more than 20 years; a fine of no less than $300 and no more than $2,000; installation of an interlock for the full time of the suspension plus for minimum 6 months to 3 years after suspension; and a minimum 12 hours a 48 hour period in an Intoxicated Drivers Resource Center. N.J.S.A. 39:4-50-4(a). These are not within the discretion of the sentencing court as would be indicated by the new shortened form. 3

29 QUESTIONS PRESENTED The NJSBA seeks to address issues both directly presented by the facts of this case, as well as those implicated by the case as a whole. The facts require us to address first: (1) Whether the State needs to comply with the plain and unambiguous language of the Refusal statute which requires that the police read the current standard Refusal statement? (2) If the State has the burden to prove the element that the subject has been informed of the consequences of Refusal, can a trial court ad hoc decide that some lesser statement may be substituted? Additionally, the NJSBA will address what may be the elephant in the room which, although alluded to by the State, (State s Brief, p. 10), has not been fully addressed by the parties. The Appellate Division opinion below (Aa2 - Aa16) has been most often cited around the state not for its own facts, as those facts are indeed very rare and not likely to often occur, but instead to address much more widespread issues with the forms that our courts have been facing since the adoption of the mandatory interlock device on January 14, 2010, and then further after the State promulgated its abbreviated form on July 1, Proper guidance by the Court would greatly assist the over 4

30 500 municipalities in our State that administer justice every day and would impose a consistency, uniformity and fairness in this important area of law. Accordingly, the NJSBA, in its role as amicus curiae, posits two additional questions: (3) Does the State satisfy its burden of proof on a Refusal charge by merely showing that the police read the current form, even if that form is deficient in informing the subject of the mandatory minimum penalties? (4) Does the current statement promulgated by the State, which actually misinforms a subject that there are no mandatory minimum license suspension, fines, etc., satisfy the State s obligation under the statute to inform the subject of the consequences of a Refusal? 5

31 LEGAL ARGUMENT POINT ONE SINCE THE PLAIN AND UNAMBIGUOUS LANGUAGE OF THE REFUSAL STATUTE REQUIRES THAT THE CURRENT STANDARD STATEMENT SHALL BE READ BY THE POLICE OFFICER TO THE PERSON UNDER ARREST AND SINCE THAT ADMITTEDLY DID NOT OCCUR HERE, THE STATE DID NOT MEET ITS BURDEN OF PROOF UNDER THE STATUTE. The Legislature crafted the Implied Consent law, N.J.S.A. 39:4-50.2, and the Refusal law, N.J.S.A. 39:4-50.4a, to make certain that police officers inform a driver of the penalties for refusing to submit to a chemical breath test in order to encourage breath tests. They also made clear that the method of conveying the penalties is by reading a standard statement in all cases to every subject. The section at issue in this case is N.J.S.A. 39: (e) which provides: 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, shall be read by the police officer to the person under arrest. Blood can be taken by force by just holding a subject down and taking the blood. There is no procedure for forcibly withdrawing 6

32 air from the lungs, absent torture or the threat thereof, which would be illegal. Therefore, the first sentence of the provision is technically superfluous in that you cannot force someone to blow into a machine. But the Legislature s intent is clear enough; this is a voluntary process. Indeed, the next two sentences verify this, paraphrased: (1) The police officer must inform the subject of all the penalties so that the subject will decide that it is in his or her own interest to voluntarily blow into the machine. (2) A standard statement should be used to accomplish this so that there is some clear proof that all of the penalties were in fact read in every case and not deviated from. There is nothing ambiguous or unclear about the plain language of the statute which manifests the legislative intent here and, accordingly, the Court s role is clear. The Legislature s intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language. Frugis v. Bracigliano, 177 N.J. 250, 280, 827 A.2d 1040 (2003). We ascribe to the statutory words their ordinary meaning and significance, Lane v. Holderman, 23 N.J. 304, 313, 129 A.2d 8 (1957), and read them in context with related provisions so as to give sense to the legislation as a whole, Chasin v. Montclair State Univ., 159 N.J. 418, , 732 A.2d 457 (1999). It is not the function of this Court to rewrite a plainly-written enactment of the Legislature [ ] or presume that the Legislature intended something other than that expressed by way 7

33 of the plain language. O Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002). We cannot write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment, Craster v. Bd. Of Comm rs of Newark, 9 N.J. 225, 230, 87 A.2d 721 (1952), or engage in conjecture or surmise which will circumvent the plain meaning of the act, In re Closing of Jamesburg High School, 83 N.J. 540, 548, 416 A.2d 896 (1980). Our duty is to construe and apply the statute as enacted. Ibid. DiProspero v. Penn, 183 N.J. 477, 492 (2005). A court should not "resort to extrinsic interpretative aids" when "the statutory language is clear and unambiguous, and susceptible to only one interpretation...." Lozano v. Frank DeLuca Const., 178 N.J. 513, 522, 842 A.2d 156 (2004) (internal quotations omitted). DiProspero, supra, 183 N.J. 477, Only two years ago, this Court fastidiously reviewed and analyzed this very section in State v Marquez, 202 N.J. 485 (2010). There is no need to reinvent the wheel today. The Marquez court noted that State v. Widmaier, 157 N.J. 475 (1999) had previously held that by requiring a standard statement be read... the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breath... test (Emphasis added). Widmaier at 489. The Court confirmed this in State v. Cummings, 184 N.J. 84, 96 (2005) where the Court found that police officers still must provide defendant the standardized statement of the consequences for the failure to submit to a breathalyzer test required under 8

34 N.J.S.A. 39:4-50.2e. The Court adopted the holding of State v. Duffy, 348 N.J. Super. (App Div. 2002) that, the statement must be read to obtain a conviction. And the Court cited N.J.S.A 39:4-50.2a which requires the Attorney General to draft and disseminate [g]uidelines for DWI and breath test Refusal prosecutions, finding those very guidelines supported an interpretation that reading the statement was an element of the offense by mandating that the State prove that [t]he person refused to submit to chemical breath testing, after the law enforcement official read the Standard New Jersey Motor Vehicle Commission.. Statement for that offense to that person. Marquez, supra, at 506, quoting Attorney General s Guideline: Prosecution of DWI & Refusal Violations 4-5, Office of the Att y Gen., (Jan. 24, 2005) (emphasis added) (citation omitted). In summary, the Marquez court found that [t]he Legislature did not direct that officers take objectively reasonable steps to inform defendants; rather, it specifically mandated that officers read a particular statement N.J.S.A. 39:5-50.2(e), and it made conviction dependent on whether a defendant refused to submit to a test upon request of the officer, N.J.S.A. 39:4-50.4a(a). Marquez, supra, at 506, n. 8. It is pretty obvious (from their brief) that the State did not like the Marquez ruling, and so it does surprise that it does not like the ruling below which flows therefrom. However, 9

35 these results were not dictated by the Court, however, but by the Legislature alone. That is where the State must address its concerns, not here. The reasoning in Marquez was well-founded and based in the plain language of the statute. A careful reading of the two statutes reveals 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. N.J.S.A. 39:4-50.2(e), 39:4-50.4a(a); Wright, supra, 107 N.J. at 490, 527 A.2d 379. Ibid. at 504 (emphasis added). There is a two-part analysis necessary in reviewing any Refusal conviction based upon a failure to inform the defendant of the penalties. First, the State must prove that the standard statement was read to the subject. The Legislature made this method the presumptive way to inform of the penalties. The standard statement established in the statute must be read to the defendant in order for the State to obtain a conviction. Duffy, supra, 348 N.J. Super. at And if not challenged, the inquiry will end there. 10

36 However, if the form is challenged as deficient in complying with the Legislature s intention (i.e. informing the subject of the consequences of a Refusal), then a second step is required to determine whether the form promulgated actually conveys the necessary information. The intent behind reading the form is obviously to impart knowledge of the consequences of refusing, thereby encouraging test taking. To inform a subject of the wrong consequences fails to provide the necessary procedural safeguard to help ensure that defendants understand the mandatory nature of the test. Widmaier, supra, 157 N.J. at 489. In this case, it is undisputed that the police officer did not read the standard statement in effect at the time to the defendant. Therefore, the inquiry should end there. The State has not met its burden of proving that it read the current version of the required standard statement. However, we next ponder the question of whether there is an exception to this requirement, if the variation from the current version is minor. 11

37 POINT TWO WHILE SOME MINOR LANGUAGE VARIATION MAY NOT PROVE FATAL TO A STATE S CASE, THE APPELLATE DIVISION WAS CORRECT IN FINDING THAT THE DIFFERENCE IN ACTUAL MANDATORY SENTENCING WAS NOT SUPERFLUOUS TO THE PLAIN LANGUAGE THAT REQUIRES THAT THE POLICE SHALL INFORM THE PERSON ARRESTED OF THE CONSEQUENCES OF REFUSING. As noted in Point One, supra, the legislative intent is clearly indicated in the plain language of the statute in this case. See DiProspero, supra, 183 N.J. at 492. The standard statement must be read. But what if the variation is so minor as to not be violative of the legislative intent? What if the officer reads the form with slight paraphrasing or misreads a word or two? (Perhaps preserved on a videotape that illustrates we all sometimes read less than perfectly.) This would be a flaw but not a fatal one. As the Appellate Division stated below: [w]e judge the adequacy of the statement read to him not based upon its likelihood to affect his actions but rather, whether it satisfied the legislative mandate. (Aa14) However, on the other hand, a flaw that goes directly to the intent of the statute to convey the consequences of a Refusal is entirely a different matter as it violates the clear intent that [T]he police officer shall... inform the person arrested of the consequences of refusing. N.J.S.A. 39: This is where the lower court found issue in 12

38 particular. It was not that any variation was fatal, but that the penalties read did not comport with the penalties then in force. That was, and must remain, fatal if the statute is to have any meaning. Again, the Appellate Division stated below: [w]e judge the adequacy of the statement read to him [the Defendant] not based upon its likelihood to affect his actions but[,] rather, whether it satisfied the legislative mandate. (Aa14) Respectfully, it is not for even this esteemed Court to decide whether one more month of driver s license suspension is substantial or not. The very fact that the Legislature increased the minimum penalty by one month makes it abundantly clear that the Legislature presumptively intended that one more month was significant or it would not have added it. A six month loss of license could be a dividing line for some jobs. For example, an employer might say that you can have no license for up to six months but after that you lose your job. Arbitrary lines are often drawn in such ways. The fact that the Legislature and Governor decided that the extra month mattered, that a subject be informed of that additional consequence, and that that is accomplished by the police officer reading a standard statement is not a matter for the Court to upend, as the State would have this Court. In short, the Court s discretion here is limited by the clear reading of the subject statute, taken as a whole, in addition to 13

39 the equally clear past precedent established by this Court in Marquez. The Court need not address the issue of the $50 difference in fine because, once it is clear that the officer did not read the proper license suspension, even if we get past the fact that it was not the proper form, the inquiry ends. Even if we assume for the sake of argument that the form read need not be the currently promulgated one, the fact is that not even a bare minimum threshold of reading the proper license suspension was reached here. This was fatal to the Refusal charge at issue. 14

40 POINT THREE EVEN IF THE POLICE OFFICER READS THE CORRECT STANDARD FORM (UNLIKE HERE) THE STATUTORY ELEMENT OF PROOF ALSO REQUIRES THAT THE OFFICER ACTUALLY CONVEY THE CONSEQUENCES OF REFUSING, AND WHEN THAT DOES NOT OCCUR, THE ELEMENT OF PROOF FAILS. What happened here in this case, i.e. reading a five-year out-of-date form is very unlikely to reoccur. However, what happens if the police read the current form exactly, but that form does not convey the correct penalties? Can the state then say that all that need be done to satisfy the statute is for police to read whatever is promulgated? The Appellate Division opinion (Aa2 Aa16) in this matter was most often cited around the state, in the period after the ruling and before the new form was promulgated on July 1, 2012, to address the critical issue that the April 26, 2004 form being read statewide did not contain any reference to the mandatory interlock device penalties which were required as of January 14, 2010 by N.J.S.A. 39: The interlock device is required to be paid for by the defendant and to be installed for the entire 2 For a first refusal offense, the mandatory penalties are 7-12 months loss of license or 1-2 years loss of license if the offense occurred in a school zone, $300-$500 fine or $600-$1,000 if a school zone, plus 6 month to 1 year mandatory interlock and 12 hours with a 48 hour period mandatory at the Intoxicated Drivers Resource Center (IDRC). A second offense has 2 year mandatory loss of license, 4 years if a school zone, $500 -$1,000 fine, $1,000 -$2,000 if a school zone, 1-3 years of mandatory interlock device. A third or subsequent offense carries a mandatory 1 year of license, $1,000 fine, $2,000 for a school zone, ad interlock for 1 3 years. N.J.S.A. 39:4-50.4a. 15

41 period of driver s license suspension and then for an additional mandatory six months to one year after a first offense, or one to three years after the suspension period for a second or subsequent offense. N.J.S.A. 39: et seq. The subject must blow into it to start a vehicle, and periodically stop the vehicle and blow into the device to continue driving. The device is set at a much lower threshold than DWI, i.e..04 BAC, and reports any violation electronically. Our member attorneys reported that, throughout the State, the O Driscoll opinion below is cited for the position that a defendant who was not read the correct penalties even if he or she was read the then-current form, could not be convicted of Refusal. Although beyond the actual facts in this case (where the wrong form was read) (Aa17), many trial courts found that the State could not meet its burden of proof as it had not fully conveyed the penalties for Refusal to the subject as required by statute. Other courts, however, were persuaded only that the sentence (as similarly argued in the alternative by the State here as to six months suspension vs. seven months, see State s Brief, pp ), could not include the otherwise mandatory but not advised interlock penalties. Still other courts did not see the opinion as persuasive on either the issue of conviction or sentence. 16

42 We think the correct courts were those which found that a form conveying less than the mandatory penalties failed to satisfy the legislative intent and therefore that element of proof failed on the Refusal charge. The Legislature requires a standard statement be read as a method of making sure that everyone is informed both properly and without variation and that if the required statement is not read, then the Refusal proof fails. See Point One, infra. However, the converse is not true, as it does not follow that just because the correct form is read, the element of informing a subject of the consequences is met. The statute requires both that [t] he police officer shall inform the person arrested of the consequences of refusing to submit, N.J.S.A. 39:4-50.2c, and that [a] standard statement shall be read by a police officer to the person under arrest, N.J.S.A. 39: Since conveying the consequences is an element of the State s case, Marquez, supra, at 506 n.8, if the wrong penalties are conveyed, then the State has failed to meet its burden. The Appellate panel below correctly recognized that: [t]he statute states explicitly, if these elements of the violation are not established, no conviction shall issue. (Aa15) Therefore, the Appellate Division held: 17

43 Here, the fatal flaw in the Standard Statement read to the defendant was that it provided inaccurate information about the penalties he faced and therefore, did not clearly delineate the penalties for a Refusal. Pursuant to Schmidt, the Standard Statement did not satisfy the statutory mandate and, consequently, this essential element of a Refusal conviction was not proven. Aa14 Aa15. In the case, unlike the instant matter, where the correct form of standard statement is read, but the substance of the form is lacking, the essential element would, likewise, not be proven. It would be absurd to think that reading any form promulgated, no matter its content, satisfies the statute. Reading Mary Had A Little Lamb even if it is promulgated by the proper authority as the standard form would obviously not comply with the statute. The Legislature may have given the State the authority to promulgate the standard language but that was not a carte blanche to do what it wanted. The Legislature entrusted the executive to draft language that complied witht he intent of the statute. Schmidt, supra, 206 N.J. 71, no. 1. A form that conveys less than the consequences of a Refusal does not meet the legislative intent. As we address next, this issue has continued and pertains to the newly promulgated form as well the one it replaced. 18

44 POINT FOUR THE CURRENT STANDARD STATEMENT, PROMULGATED AFTER THE DECISION BELOW, NOT ONLY DOES NOT SATISFY THE STATUTORY REQUIREMENT THAT THE FORM CONVEY THE CONSEQUENCES OF REFUSING, BUT MOREOVER IT ACTUALLY MISINFORMS A SUBJECT THAT THERE ARE NO MANDATORY MINIMUM PENALTIES FOR REFUSING, THEREBY INCREASING THE LIKELIHOOD OF REFUSALS IN DIRECT CONTRAVENTION OF THE VERY PURPOSE OF READING THE FORM. There is sometimes the mistaken belief that it is beneficial to refuse a breath test. However, any such incentive vanished long ago with the advent of mandatory penalties for refusing which are on par with DWI penalties, but for jail. Moreover, the defendant is still charged with DWI as well. So the driver s license penalties are at least doubled if convicted of both DWI and Refusal, and, in the case of first offenses, they are more than doubled. N.J.S.A. 39:4-50.4a. Being charged with a Refusal makes it more difficult to for a defendant to utilize his right to a trial as well. Tactically, the additional charge places in the prosecutor s hand a powerful tool to obtain guilty pleas since he can plea bargain away much of the additional penalties in return for a plea to the DWI (or in the case of a first offense, merge the penalties.) See Rules of Court, Part 7, Appendix, Guidelines for Operation of Plea Agreements in the Municipal Courts of New 19