On appeal from the Superior Court, Law Division, Sussex County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Defendant appeals his convictions in the municipal court and the Law Division on a motor vehicle charge of driving while under the influence of intoxicating liquor (N.J.S.A. 39:4-50(a)). He argues that the State failed to prove his guilt beyond a reasonable doubt. He also asserts he should have been given Miranda warnings at the time of his initial stop and/or at the time he was taken into custody and further, that the "rights" normally read to a driver prior to breathalyzer testing are constitutionally insufficient.
Defendant was charged at the time the offense occurred on January 14, 1983 and was tried and convicted in the municipal court on January 19, 1984. His conviction after a de novo trial on the record in the Law Division took place on May 31, 1984. He filed his appeal with this court on June 20, 1984.
Defense counsel before the municipal court trial commenced entered a plea of not guilty stating "[o]ne of my defenses, and the basic defense, is that in this type of case, it is necessary for the law enforcement officer to read the Miranda warnings to the defendant."
On July 2, 1984 the United States Supreme Court handed down its decision in Berkemer v. McCarty, U.S. , , 104 S. Ct. 3138, 3148, 82 L. Ed. 2d 317, 331 (1984), holding that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards established in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) regardless of the nature or severity of the offense which occasioned the arrest. The Court went on to hold that temporary detention pursuant to ordinary traffic stops does not constitute "custody" for Miranda purposes and that it is only
when a suspect's freedom of action is curtailed to the degree normally associated with a formal arrest that Miranda applies. U.S. at , 104 S. Ct. at 3151, 82 L. Ed. 2d at 334-35.
Although a determination of the issue of the retroactivity of Berkemer might not be necessary for the disposition of this appeal, we choose to rule on the issue inasmuch as defendant raised it in the municipal court and the only reported decision in this jurisdiction is a Law Division opinion which disposes of the issue based primarily upon precedents which deal with the retroactivity of Fourth Amendment rather than Fifth Amendment principles. See State v. Vega, 200 N.J. Super. 448 (Law Div.1984). In Shea v. Louisiana, U.S. , , 105 S. Ct. 1065, 1070, 84 L. Ed. 2d 38, 46-47 (1985) the United States Supreme Court concluded that:
There is nothing about a Fourth Amendment rule that suggests that in this context it should be given greater retroactive effect than a Fifth Amendment rule. Indeed, a Fifth Amendment violation may be more likely to affect the truth-finding process than a Fourth Amendment violation.
The United States Supreme Court reaffirmed a three pronged test in Solem v. Stumes, U.S. , 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984) when it considered the retroactivity of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), another Miranda case. The Court there adopted the following three criteria to guide resolution of the retroactivity question: (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards and (c) the effect on the administration of justice of a retroactive application of the new standards. U.S. at , 104 S. Ct. at 1341, 79 L. Ed. 2d at 587.
In applying the first prong of the test, Stumes held that retroactive effect is most appropriate where the new constitutional principle is designed to enhance the accuracy of criminal trials. Id. at , 104 S. Ct. at 1341, 79 L. Ed. 2d at 587. Stumes points out that although the Miranda warnings are not entirely unrelated to the accuracy of ...