This is an appeal by way of trial de novo of the conviction of defendant Robert W. Bottomly for violation of N.J.S.A. 39:4-50, -50.2 and :3-29 in the Municipal Court of the Township of Woodbridge.
On July 12, 1984 defendant Robert W. Bottomly was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50. He was also issued a summons for failure to exhibit a drivers license and registration certificate, contrary to N.J.S.A. 39:3-29. Subsequent to his arrest, defendant was transported to the Woodbridge Township Police Station in order that a breathalyzer test be administered. Defendant refused to submit to the breathalyzer test and was charged with refusal to take a breathalyzer test, in violation of N.J.S.A. 39:4-50.2. On August
28, 1984, defendant was found guilty on all charges in the Municipal Court of Woodbridge. A fine of $250, $15 court costs, $100 surcharge and a one-year license suspension was imposed as to the driving under the influence charge. A fine of $250, $15 court costs and six months drivers license suspension was imposed as to the refusal charge. A fine of $5 and $5 court costs were imposed for the no drivers license and no registration charges. All fines and penalties were stayed pending appeal.
Thereafter, a timely notice of appeal for a trial de novo on the record was filed on September 5, 1984. At the trial de novo, the court reserved decision on the driving while under the influence charge and found defendant guilty as charged on all other counts. Fines identical to those imposed in municipal court were ordered.
The record discloses that defendant was stopped by the Woodbridge Township police who were dispatched to the area in response to a suspicious vehicle in the area. The description given was of an older model yellow Mustang which matched defendant's vehicle exactly. The police officer testified that when asked, defendant was unable to produce a driver's license or registration. The officer further testified to the odor of alcohol on defendant's breath, lack of balance, flushed face and antagonistic nature, and stated that in his opinion defendant was under the influence of alcohol. Defendant was placed under arrest for driving under the influence and was transported to the Woodbridge police station. At the police station, while on video tape, defendant refused to submit to the breathalyzer test.
The videotape which was played at the trial de novo revealed that as the police officer was advising defendant of his rights under N.J.S.A. 39:4-50.2 and asking a series of procedural and administrative questions, defendant acted in a belligerent, uncooperative and antagonistic manner.
Defendant's position on appeal is that by virtue of the case of Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984), the entire videotape of defendant's refusal to take the breathalyzer test should be held inadmissible. Berkemer held that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), regardless of the nature or the severity of the offense of which he is suspected or for which he was arrested. Defendant takes the position that the rights read to defendant and questions asked during the preliminary procedure of administering the breathalyzer test amounted to an illegal custodial interrogation and as such, in the absence of Miranda warnings, the entire manner in which defendant responded must be suppressed. Defendant contends that gestures, movements and demeanor as well as verbal answers were responsive statements which cannot be introduced into evidence to establish his guilt and must be suppressed. Defendant further contends that "but for" the illegal interrogation, defendant would not have made any statements or gestures and had he been afforded his constitutional rights, he could have suspended all interrogation until he was permitted to speak to counsel.
At the police station an officer advised defendant of the nature of the charge against him and the requisite rights he had regarding the breathalyzer test. The officer testified that he read the following statement to defendant.
Number (1) -- You have been arrested for violation of N.J.S.A. 39:4-50, operating a vehicle while under the influence of in toxicating liquor or drugs; (2) you are required by law, N.J.S.A. 39:4-05.2 to take a breath test to determine the quantity of alcohol in your blood; (3) upon your request a copy of the blood test results will be given to you; (4) you have no legal right to counsel, an attorney, a physician, or anyone else before you take the breath test; (5) after you take the required breath test, you have the right to have samples taken, a chemical test, of your blood . . . urine or blood by a person or physician of your choice; (6) if you refuse to submit to the breath test you will be issued a separate summons for violation of N.J.S.A. 39:4-50.2 in addition to the summons issued for operating a motor vehicle under the influence of intoxicating liquor or drugs; (7) if the municipal court finds you guilty of refusing to submit to the ...