On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Fritz, Brody and Gaynor. The opinion of the court was delivered by Brody, J.A.D. Fritz, P.J.A.D. (dissenting).
Defendant was charged with operating a motor vehicle while under the influence of liquor (N.J.S.A. 39:4-50) and refusing to give a sample of his breath "for the purpose of making chemical tests to determine the content of alcohol in his blood" (N.J.S.A. 39:4-50.2; N.J.S.A. 39:4-50.4a). The municipal court judge was not convinced beyond a reasonable doubt that defendant operated the vehicle. Four witnesses testified that he was a passenger. The judge was satisfied, however, that the arresting officer had probable cause to believe that defendant had been the operator of the vehicle. Defendant was therefore acquitted in the municipal court of operating while intoxicated, but convicted of refusing to submit to the breathalyzer test.
The sole issue presented to the Law Division Judge was a legal one: when a defendant is charged with refusing to submit to a breathalyzer test, must the State prove beyond a reasonable doubt that he was operating a motor vehicle at the time he was allegedly intoxicated? The judge answered the question negatively, found defendant guilty, suspended his operator's license for six months and imposed a $250 fine. We recently
answered the question affirmatively and now reverse the conviction. State v. Gately, 204 N.J. Super. 332 (App.Div.1985).
A person may lawfully refuse to give a police officer a breath sample unless that person had previously consented to the procedure and the "police officer . . . has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50." N.J.S.A. 39:4-50.2(a). A person is deemed to have given his consent by operating a motor vehicle on a New Jersey street. Ibid. Thus the operator of a motor vehicle may lawfully refuse an officer's request when the officer has no reasonable grounds for charging him with being intoxicated. A person not operating a motor vehicle, who therefore has not given previous consent to surrender his breath, may also lawfully refuse an officer's request even though the officer has reasonable grounds for charging him with operating while intoxicated.
The wording of N.J.S.A. 39:4-50.4a can cause some confusion because it appears to contain all the elements of the offense. Those elements include "whether the arresting officer had probable cause to believe that the [defendant] had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State. . . ." That section also provides, however, that the offense consists of refusal "to submit to the chemical test provided for in [ N.J.S.A. 39:4-50.2]."
N.J.S.A. 39:4-50.2 implicitly prohibits taking breath samples of a person without his consent. It further provides, however, that "[a]ny person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State 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 alcohol in his blood. . . ." It further provides that only after such consent has been given may "a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50" request that person to give a sample of his
breath. Thus in order to convict a person for refusing to give a sample of his breath, the State must prove that he had given prior consent under N.J.S.A. 39:4-50.2, in addition to proving the elements of the offense as provided in N.J.S.A. 39:4-50.4a.
We agree with the court in Gately that N.J.S.A. 39:4-50.2 deems consent to have been given by the act of operating the motor vehicle at the time of the alleged intoxicated driving. "Any person who operates a motor vehicle . . . shall be deemed to have given his consent . . ." can have no other reasonable meaning. Our dissenting colleague states that these words refer to "those who have in fact been driving." Presumably that would include anyone who has ever operated a motor vehicle at some time in his life. Surely the Legislature did not intend that a person who once operated a motor vehicle 25 years ago thereby consented to giving a New Jersey police officer a sample of his breath a quarter of a century later. Nor should the words be limited to mean persons licensed by New Jersey or some other jurisdiction to operate a motor vehicle. There is no reason to immunize unlicensed operators from the imposition of a fine.
Finally, it makes sense to predicate a conviction for refusing to submit to a breathalyzer test on a preliminary finding that the defendant was in fact operating a motor vehicle while allegedly under the influence. The function and purpose of the refusal offense is to punish an operator who attempts to defeat a prosecution for operating while under the influence by withholding evidence of intoxication. Probable cause to believe that an operator was under the influence is therefore all that should be needed to convict for refusal. The refusal, however, does not deprive the police of evidence of operation. There is therefore less reason to convict ...