On appeal from the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 482 (1986).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by Garibaldi, J.
The issue in this case is whether a defendant may be convicted under N.J.S.A. 39:4-50.4a for refusing to submit to a breathalyzer test without proof that he actually was operating a motor vehicle at the time of his arrest. We hold that proof of actual operation is not required. To secure a conviction under N.J.S.A. 39:4-50.4a, the State must prove only that (1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test.
At approximately 12:52 a.m. on October 15, 1983, Patrolman Banach of the Monroe Township Police Department was sent to investigate a car parked on Spotswood-Englishtown Road. The car was parked in the right lane of the southbound side of the highway with the passenger-side tires touching the line separating the lane from the shoulder. Officer Banach found defendant, Gary Wright, sitting alone in the car. He was sitting in the driver's seat (the car had bucket seats), with the headlights on and the motor running.
Officer Banach asked to see defendant's driving credentials. Before producing the desired documents, defendant said, "I just stopped to let my girlfriend out to go to the bathroom." He indicated that she had gone into the woods. Officer Banach became suspicious that defendant might be intoxicated. The officer testified that defendant smelled of alcohol and that his speech was slurred. The officer asked defendant to step out of
the car. At this point, defendant admitted that he had consumed "a couple of beers."
Officer Banach asked defendant to perform various balancing tests. Defendant swayed when he stood with his feet together and his eyes closed. Defendant was able to touch his finger to his nose only once in thirteen attempts. He was unable to walk upright in a heel-to-toe fashion. In addition, defendant was unable to recite the alphabet correctly although the officer gave him two opportunities. At that point, Officer Banach concluded that defendant was intoxicated and placed him under arrest.
Soon thereafter, a woman, identified as defendant's girlfriend, Doris Patterson, approached the car from the nearby woods. She told the officer that she was the owner of the car and had been driving. But, because of defendant's earlier statements and his position behind the wheel, Officer Banach believed that defendant had been operating the car. Officer Banach took defendant to police headquarters, advised him of his rights, and asked him to submit to a breathalyzer test. He refused.
Defendant was charged with operating a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-50, and refusing to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.4a. The matter was tried in municipal court. Four witnesses testified that defendant was merely a passenger in the car, not the operator. The court acquitted defendant of driving while intoxicated because it was unable to conclude beyond a reasonable doubt that defendant had been the driver of the car.*fn1 However, the court convicted
defendant of refusing to submit to a breathalyzer test because it concluded that Officer Banach had probable cause to believe that defendant was the driver of the car.*fn2 The court fined defendant $250, plus court fees. It also suspended defendant's driver's license for two years, although the length of the suspension was later reduced to six months.
Defendant appealed to the Law Division, which held a trial de novo on the transcripts. Defendant argued that only a person who actually operates a vehicle can be convicted for refusing to take a breathalyzer test because New Jersey law implies consent to such a test only to a "person who operates a motor vehicle on any public road, street or highway." N.J.S.A. 39:4-50.2(a) (the consent statute).*fn3 The Law Division held that proof of actual operation is not necessary for a conviction under N.J.S.A. 39:4-50.4a (the refusal statute) because actual operation is not one of the requirements set forth in the statute.*fn4
The Appellate Division reversed defendant's conviction. 209 N.J. Super. 482 (1986). The court held that the consent statute and the refusal statute must be read together. The court began with the premise that "[a] person may lawfully refuse to give a police officer a breath sample unless that person had previously consented to the procedure. . . ." Id. at 484. Since N.J.S.A. 39:4-50.2(a) implies consent only to persons operating a motor vehicle, the court concluded that "[a] person not operating a motor vehicle, who therefore has not given previous consent to surrender his breath, may . . . lawfully refuse an officer's request even though the officer has reasonable grounds for charging him with operating while intoxicated." 209 N.J. Super. at 484. Stated differently, "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(a) in addition to proving the elements of the offense as provided in N.J.S.A. 39:4-50.4a." Id. at 485. Since the municipal court found insufficient evidence to conclude beyond a reasonable doubt that defendant actually operated the car, the Appellate Division reversed the conviction.
Judge Fritz dissented. He rejected the majority's conclusion that both statutes must be read together. He first noted his fundamental disagreement with the majority's conclusion that the consent statute, by implication, prohibits the taking of breath samples without consent. Judge Fritz opined that N.J.S.A. 39:4-50.2(a) was designed to provide a conclusive presumption that all who drive have consented including even those who might be incapable of giving consent at the time of apprehension. Id. at 487. Judge Fritz concluded that N.J.S.A. 39:4-50.4a is self-contained and designed to encourage cooperation
with police before evidence is lost forever. Id. at 489. He argued that reading the two statutes together, as the majority did, makes the refusal statute redundant because an operator who refuses to submit to the test could already be punished under the consent statute. Id. Therefore, Judge Fritz would have affirmed the conviction provided the officer had probable cause to believe that the defendant operated the vehicle, regardless of whether defendant actually operated the car. Id. at 490.
By virtue of Judge Fritz's dissent, the state was entitled to an appeal as of right. R. 2:2-1(a)(2). We granted the Attorney General leave to appear as amicus curiae.
The language and legislative history of N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a, as well as the fundamental policies underlying our drunk driving laws, lead us to conclude that the Legislature did not intend to require proof of actual operation ...