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State v. Leavitt

Decided: June 30, 1987.


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 O'Hern, J.


We granted certification, 107 N.J. 28 (1986), limited solely to defendant's argument that giving Miranda*fn1 warnings and "implied consent" warnings to a suspected intoxicated driver is inherently confusing, thereby depriving the suspect of the effective assistance of counsel. The Miranda warnings basically state that a defendant has the right to remain silent and the right to consult with an attorney; the "implied consent" or "refusal" warnings, however, inform the suspect that the right to remain silent and right to consult with an attorney do not apply to the taking of breath tests and do not give a right to refuse to take the breath test. We find that this defendant was not confused and that he was not denied the effective assistance of counsel at any critical stage of the prosecution.

The case arises from an accident in a parking lot. The defendant had returned to the parking lot in order to push his

stalled vehicle to an area from which it could be towed. He got the car rolling and jumped in, but in the course of its passage through the parking lot the car collided with a car backing out of a parking space. This car's driver suspected defendant was under the influence of alcohol, and called the police. The police officer who arrived at the scene smelled alcohol on defendant's breath and conducted a field balance test. The officer arrested the defendant and took him to police headquarters. Defendant consented to breathalyzer testing, which resulted in two .16% blood-alcohol readings.*fn2

The argument made in the municipal court was essentially a right-to-counsel argument phrased this way:

[T]he problem is * * * that the Miranda Rights and the Refusal Rights are read to the defendant and they are in conflict. Although we can say it's illegal in the sense that Mr. Leavitt will be punished for a refusal to take the test, he does have the power in New Jersey to refuse to take the test. And * * * in that situation, he must have the advice of counsel.

The municipal court correctly recognized that "there is no constitutional sixth amendment right or constitutional due process right to Counsel for purposes of consultation prior to the administration of a breathalyzer test." It therefore ruled that the warning to the defendant that he had no right-to-counsel before deciding whether to consent to such a test is not a deprivation of the defendant's rights. Hence, the court denied the motion to suppress the results of the breathalyzer test. Defendant was convicted of driving while intoxicated in violation of N.J.S.A. 39:4-50.

On appeal to the Law Division, defendant renewed the argument concerning the inconsistent nature of the warnings, stating that the "contradictory advice given under the refusal form leads any person into confusion * * * [a]nd the law is in somewhat * * * of confusion now." The Law Division found,

however, that the police officer did, in fact, properly inform the defendant of his rights under the implied consent law and recognized that although some states have decided that a defendant does have a right to assistance of counsel during the initial stages of the arrest, and prior to and during the breathalyzer test so long as that does not cause undue delay, it was not the law in New Jersey. The court also noted that "at no time * * * during the video taping did the defendant request that an attorney be provided to him after having been advised of his rights." It thus found no cause to suppress the breathalyzer test or dismiss the complaint on this issue.*fn3

Defendant raised five issues on appeal: (1) that the inherent conflict between the Miranda warnings and the instructions prior to administration of the breath test created a violation of his constitutional rights and mandates dismissal; (2) that the practice of the local police of holding individuals suspected of driving while intoxicated (DWI) for several hours prevented him from obtaining independent scientific tests; (3) that the breath test results were not conclusive and were rebutted by the videotape evidence; (4) that the State had not carried its burden of proof; and (5) that defendant was not "operating" his vehicle within the meaning ...

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