[232 NJSuper Page 379] On January 30, 1988, at approximately 8:15 a.m., defendant was operating a motor vehicle which became involved in an accident with another vehicle in Galloway Township. The road was icy; defendant's vehicle started to spin, and it left it's lane
of travel and crossed the center line where it hit a car proceeding in the opposite direction.
Patrolman Midgette of the Galloway Township Police Department was dispatched to the scene of the accident, where he found defendant alone in his vehicle in the driver's seat. Patrolman Midgette observed a strong odor of alcoholic beverage about defendant, and that defendant's face was flushed and his eyes appeared watery. Defendant complained of an injury to his knee from the accident, as a result of which no balance tests were administered at the scene. Defendant was arrested and charged with operating under the influence, and taken immediately to the nearby Atlantic City Medical Center for treatment of his injuries.
At the scene of the accident, after defendant's arrest, Patrolman Midgette advised defendant of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At the medical center Patrolman Midgette read "Paragraph 36" of the drinking/driving influence report to defendant. This refers to a lengthy statement of defendant's obligation to submit to a chemical test of defendant's breath for the purpose of determining blood alcohol content, advises defendant that he is legally obligated to submit to such an examination, and that he has no right to consult with an attorney prior to the examination. In reading these provisions to defendant, Patrolman Midgette determined to substitute a request for a blood sample rather than a breathalyzer examination because: (1) he and defendant were in the medical center; (2) presumably medical personnel were immediately available to take the blood sample, and (3) the breathalyzer machine was located at police headquarters which was a short distance away from the medical center.
Defendant agreed to provide a sample of his blood for analysis, but when it shortly became evident that there would be some delay because appropriate medical personnel were not immediately available to take the blood sample defendant
changed his mind. Patrolman Midgette then re-advised defendant of his obligation to submit to a breathalyzer examination and advised defendant that, upon defendant's agreement to submit to the breathalyzer examination, Patrolman Midgette would cause the breathalyzer machine to be brought to the medical center from the police department. Patrolman Midgette advised defendant that the police department maintained a "portable" breathalyzer unit for this purpose. Defendant refused to submit to the breathalyzer examination and indicated he wished to speak with an attorney.
Upon defendant's refusal, Patrolman Midgette, who was seated with defendant at a desk in the Medical Center, proceeded to issue summonses for operating under the influence of alcohol, N.J.S.A. 39:4-50, and refusal to submit to a breathalyzer examination, N.J.S.A. 39:4-50.2, -50.4a. Upon presentation of the summonses to defendant, Patrolman Midgette permitted defendant to make or receive a telephone call from his attorney. Defendant spoke with his attorney while at the desk in Patrolman Midgette's presence. Upon speaking with his attorney defendant advised Patrolman Midgette that he again had changed his mind and would agree to submit to a breathalyzer examination. Defendant's agreement to take the breathalyzer examination occurred within five minutes of his initial refusal to do so. Patrolman Midgette refused to consider defendant's belated willingness to submit to the breathalyzer examination and the test was not administered.
In the municipal court defendant was acquitted of the charge of operating under the influence and convicted of the refusal to submit to the breathalyzer examination. The matter is before this court on defendant's appeal of that conviction. For the reasons which follow I am satisfied that defendant should be acquitted of the charge of refusing to submit to a breathalyzer examination.
The sole issue in this matter, the same "troublesome" question presented in State v. Corrado, 184 N.J. Super. 561 (App.Div.1982),
is "whether an individual who initially refuses a breathalyzer test may subsequently and within a reasonable time thereafter 'cure' that refusal by ...