[200 NJSuper Page 449] On June 10, 1984, at 9:05 in the evening, a Trenton police officer observed a motor vehicle being driven without its headlights
on. The vehicle then made a wide left turn at an intersection, at which time the officer stopped it and requested the operator, defendant Vega, to produce his driving credentials. Defendant was unable to produce a license or insurance card and was slow in producing his registration. The officer detected an odor of alcohol on the driver's breath and in response to questioning by the officer the driver admitted he had several beers; his eyes were bloodshot and his pupils did not react to the officer's flashlight. He was ordered out of his vehicle and as he exited he was unsteady and unable to perform the "finger to nose test" requested by the officer. He was then placed under arrest, handcuffed and transported to police headquarters. At the scene of the arrest defendant was not given his Miranda warnings.
At headquarters he was searched and a small manila envelope containing suspected marijuana was taken from his pants pocket.*fn1 Defendant was then read the statutory requirements for the taking of a breathalyzer test, N.J.S.A. 39:4-50.2, and informed of the penalties that would be imposed in the event he refused to take the test. N.J.S.A. 39:4-50(a).
These proceedings were recorded on video tape. It was clear at this point the defendant refused to take the test and informed the officer that he wanted an attorney.*fn2 He was told by the officer that he had no right to consult with an attorney. Despite his repeated statements to the effect that he did not want to take the test, defendant was asked a number of questions from a standardized administrative form (apparently used routinely when a defendant consents to take the breathalyzer prior to the test being administered). Many of defendant's responses were inculpatory. In addition, defendant was
required to perform several psycho-physical tests with incriminating results.
Defendant does not challenge the lawfulness of the motor vehicle stop, however, he contends that once he was placed under arrest at the scene of the stop, he should have been given his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He further contends that at the police station, despite his repeated requests to consult with an attorney, he was required to answer questions and perform a number of balancing tests, all of which should be suppressed.
Defendant relies upon the recent decision in Berkemer v. McCarty, U.S. , 104 S. Ct. 3138, 82 L. Ed. 2d 317 (July 2, 1984), in which the United States Supreme Court held inter alia, "that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested." The Court made it clear that the procedural safeguards enunciated in Miranda only arise at a road side stop when the treatment by the officer of the driver is "the functional equivalent of formal arrest."
As noted previously the stop in question occurred on June 10, 1984, prior to the decision in Berkemer v. McCarty, supra, which was rendered on July 2, 1984. Defendant argues that this Court should give limited retroactive application to Berkemer to the present case, as it was pending at the time of that decision, and therefore, suppress any statements or conduct engaged in after the defendant was arrested as he did not receive his Miranda warnings.
In determining the question of retroactivity, this court must decide whether or not the Berkemer decision is a new principle of law representing a clear break with the past. United States v. Johnson, 457 U.S. 537, 549, 102 S. Ct. 2579, 2587, 73 L. Ed. 2d 202 (1982). In State v. Gervasio, 94 N.J. 23 (1983), our Supreme Court adopted the clear break with the past test enunciated in Johnson. In Gervasio the court held
that Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), represented a clear break with State Constitutional adjudications and therefore was not required to be given retroactive effect. Relying on Johnson, the Court ruled that when a decision constitutes a sharp break with prior case law, prospective application of the new rule is required because of the "reliance by law enforcement authorities on the old standards and [the] ...