On appeal from the Superior Court, Law Division, Monmouth County.
Petrella, Cohen and Skillman. The opinion of the court was delivered by Skillman, J.s.c., temporarily assigned.
This is an appeal from a judgment of conviction for driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50. Defendant entered a conditional plea of guilty pursuant to R. 3:9-3(f) in the Colts Neck Municipal Court after adverse rulings on several pretrial motions. The municipal court imposed a six-month license suspension, a fine of $250, a surcharge of $100 and a requirement of twelve hours attendance at the Intoxicated Driver Resource Center. The same sentence was imposed on appeal by the Law Division. The only argument raised on appeal to this court is that defendant had a constitutional right to consult an attorney before deciding whether to submit to a breathalyzer test and that his conviction, which was based partly on the results of two tests, should therefore be set aside. We reject this argument and affirm.
The case was heard in the Colts Neck Municipal Court and on appeal in the Law Division on stipulated facts which may be briefly summarized. Defendant was first observed driving in excess of the speed limit. When apprehended for this offense,
his behavior indicated that he might be under the influence of alcohol. He was placed under arrest and requested to take the breathalyzer test. Defendant agreed to take the test, which produced readings well in excess of 0.10 blood alcohol concentration. The parties' stipulation does not indicate that defendant requested to consult with an attorney before submitting to the breathalyzer test or that he had an attorney who would have been available to speak to him.
The Implied Consent Law imposes an affirmative legal obligation upon a driver arrested for driving while under the influence to submit to a breath test. N.J.S.A. 39:4-50.2(a) provides:
Any 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; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of 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.
However, N.J.S.A. 39:4-50.2(e) prohibits police from using physical force to compel a driver to comply with the legal obligation to submit to a breath test:
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. . . .
Therefore, the only "choice" afforded a driver alleged to have been driving under the influence is whether to comply with the law or to violate it. As the court stated in State v. Macuk, 57 N.J. 1, 15 (1970):
There is no legal right or choice to refuse, despite the authorized additional penalty for refusal in the case of the breath test. So it is inappropriate to warn that a test need not be taken, although it is quite fair to advise of the consequences of refusal to take a breath test.
Indeed, the only reason N.J.S.A. 39:4-50.2 requires a driver's consent to take a breathalyzer test is because that test "requires the affirmative cooperation of the subject who must 'blow up' the ...