On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.
Defendant, Charles D. Stever, seeks reversal of his conviction for driving while under the influence of intoxicating liquor, contrary to N.J.S.A. 39:4-50(a). This appeal presents us with the following issues: whether the Supreme Court's decision in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), requiring the administration of Miranda warnings in connection with arrests for minor traffic offenses, should be applied retroactively; whether a police officer's request for a suspect to submit to a breathalyzer test constitutes "interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and whether a defendant's refusal to submit to a breathalyzer test may be used as evidence against him on a charge of driving while intoxicated.
The facts of this case are largely uncontroverted. On January 4, 1984, at approximately 7:30 p.m., defendant, Charles D. Stever, finished work at his job as a greenhouse construction worker. After stopping at his home in Park Ridge for one hour, defendant reported to the Ski Barn in River Edge, where he held a second job. At approximately 11:45 p.m., defendant left this store and proceeded to a friend's place of business in Westwood. Defendant testified that while at his friend's store, he consumed two 12-ounce beers over a one-hour period. Thereafter, defendant and his friend went to a bar called "Talk of the Town" where defendant says that he had one more beer. Defendant left this bar at 3:00 a.m. and proceeded to Broadway Avenue in Woodcliff Lake.
At approximately 3:05 a.m., Officer Michael Origoni of the Woodcliff Lake Police Department began to follow defendant's automobile. Officer Origoni testified that defendant was travelling at 27.5 miles per hour in a 35 mph zone, and that he observed defendant's car cross the center line twice. Consequently, Origoni stopped defendant's vehicle and asked to see his driver's license, insurance and registration. According to the officer, defendant had difficulty producing these documents. Origoni also observed an open, half-full bottle of beer in the center console of the car and noticed that defendant's face was flushed, that his eyes were bloodshot, and that his breath carried an odor of alcohol.
Officer Origoni requested that defendant step out of his car and undertake certain field sobriety tests. By this time, Patrolman Michael Arnone had arrived at the scene and witnessed all tests administered. Defendant was asked twice to recite the alphabet and, according to Origoni, failed on each attempt, speaking in a slow, slurred manner and mixing up the order of the letters. The officer testified that defendant was also unable to perform two motor coordination tests; the "heel-to-toe" test, and the "finger-to-nose" test. After the completion of the tests, Origoni asked defendant where he had been earlier in the evening. Defendant replied that he had been at "Talk of the Town," where he had imbibed three or four bottles of beer.
Defendant testified to a different version of the events at the scene of the stop, asserting that he successfully performed all field sobriety tests administered by Origoni. However, Patrolman Arnone's testimony substantially corroborated Origoni's version of the incident. Arnone's description of defendant's failure of the field tests mirrored Origoni's testimony. Moreover, Officer Arnone testified that defendant's face was flushed; that his eyes were bloodshot, watery and glassy; that his speech was slurred; and that he was unable to maintain his balance while speaking to Origoni.
After the sobriety tests, Officer Origoni placed defendant under arrest, searched him, and took him to police headquarters. Arnone testified that upon arriving at the station, defendant staggered up the stairs, swayed, and leaned against a wall for support. Origoni similarly stated that defendant could not stand without support from nearby filing cabinets.
At police headquarters, the Alcohol Breathalyzer Refusal Form*fn1 was recited to defendant four times. After each recital, defendant refused requests to submit to a breathalyzer test. After one request, defendant told Origoni that he would be "fucked" if he took the breathalyzer test.*fn2 At no point subsequent to the initial stop was defendant advised of his Miranda rights.
Defendant was convicted in the Municipal Court of Woodcliff Lake of operating a motor vehicle while under the influence of intoxicating liquor, contrary to N.J.S.A. 39:4-50(a), refusing to consent to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2, and consuming an alcoholic beverage while operating a motor vehicle, contrary to N.J.S.A. 39:4-51a. On the driving-while-intoxicated charge, defendant received a sentence of 180 days imprisonment, a $1,000.00 fine, and a 10-year suspension of driving privileges.*fn3 On the refusal charge, defendant received a $250.00 fine and a license suspension of six months. Finally, for the charge of consumption while operating a motor vehicle, the court assessed a $200.00 fine.
Defendant appealed his driving-while-intoxicated conviction to the Superior Court, Law Division; he did not appeal his other two convictions. The Superior Court remanded the case to the Municipal Court for additional testimony concerning alibi witnesses. The Municipal Court conducted a second hearing, found defendant guilty, and imposed the original sentence. Defendant appealed his conviction a second time. The Superior Court conducted a de novo review of the record and affirmed both the conviction and sentence.
Defendant filed a notice of appeal with the Appellate Division, arguing, inter alia, that his conviction should be overturned on the following grounds: (1) defendant's post-arrest statements were erroneously admitted at trial since defendant was not advised of his Miranda rights; and (2) the trial court erred in admitting evidence of defendant's refusal to submit to a breathalyzer test. The Appellate Division, in an unpublished opinion, affirmed defendant's conviction and sentence, finding defendant's contentions to be "clearly without merit" under Rule 2:11-3(e)(2).
We granted certification, 104 N.J. 436 (1986).
Defendant first argues that the Supreme Court's decision in Berkemer v. McCarty, supra, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317, requires suppression of his post-arrest statements. In Berkemer, the Court extended its ruling in Miranda v. Arizona, supra, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, to arrests for minor traffic violations, holding that a failure to give the Miranda warnings in these situations will lead to suppression of all post-arrest responses to police interrogation. Berkemer v. McCarty, 468 U.S. at 434, 104 S. Ct. at 3147, 82 L. Ed. 2d at 331. The State contends that Berkemer should not govern in defendant's case because this opinion was issued subsequent to his arrest. In addition, the State argues that even if Berkemer applies, defendant's statements are admissible
since they were not given in response to police interrogation. Thus, we must first decide whether the Court's ruling in Berkemer should be given retroactive effect. This determination requires an examination of Supreme Court decisions ...