On appeal from Superior Court, Law Division, Cape May County.
King and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
[236 NJSuper Page 511] Defendant Thomas F. Sherwin appeals his conviction in the Law Division on charges of operating a motor vehicle under the
influence of alcohol, N.J.S.A. 39:4-50, and refusing to take a breathalyzer test, N.J.S.A. 39:4-50.2. He had previously been convicted in the Stone Harbor Municipal Court on these charges. On this appeal defendant contends:
1. An individual who has been read his Miranda rights and remains silent when asked whether he will submit to a breathalyzer test cannot be deemed to have refused such a request.
2. The finding of the municipal court, that the defendant was operating a motor vehicle while under the influence of alcohol, is not supported by the weight of the evidence in this case.
On June 20, 1988, at about 1:19 a.m., Patrolman French of the Stone Harbor Police Department observed defendant's vehicle traveling northbound on Third Avenue without illuminated headlights. The officer activated the overhead police vehicle lights. Defendant did not stop, but continued to drive at a fairly constant speed. After driving four or five blocks, he stopped at a stop sign and then proceeded through the intersection. The officer activated his siren and radioed for assistance. Still defendant did not pull over. Ultimately, he pulled into the driveway of his residence, jumped out of the vehicle and ran to the door of the house. A brief struggle ensued after which the officers placed defendant under arrest and read him his Miranda warnings.
The officer noted that defendant's appearance was disheveled, his eyes were bloodshot and watery and there was a strong odor of alcohol on his breath. Defendant did not recite the alphabet or perform non-verbal, psycho-physical tests when requested to do so. He was transported to the Stone Harbor Police Department where he was again given Miranda warnings and read the breathalyzer refusal form.*fn1 In sum, this informed defendant that he was required to submit to a breathalyzer test under New Jersey law; that the Miranda warning and his right to remain silent do not apply to the taking of breath samples, and that he did not have a right to refuse to
give or delay the giving of a breath sample, nor did he have the legal right to have an attorney, physician, or anyone else present for the taking of the breath samples. This warning also informed defendant that if he refused to submit to the test he would be issued a separate summons for violation of N.J.S.A. 39:4-50.2 in addition to any summons for operation of a motor vehicle while under the influence. Defendant did not respond and was read the following:
I have previously informed you that the warnings given to you concerning your right to remain silent and right to consult with an attorney do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for purposes of conducting chemical tests to determine the content of alcohol in your blood. If you either (1) do not respond to my question about submitting breath samples, or (2) tell me that you refuse to answer this question because you have a right to remain silent or first wish to consult with an attorney, physician or any other person, or (3) tell me that you will not submit breath samples because you have a right to remain silent or first wish to consult with an attorney, physician or any other person, you will be charged with refusing to submit to breath tests, a violation of N.J.S.A. 39:4-50.2.
Once again, I ask you will you submit to giving samples of your breath?
Defendant still did not respond. Thereafter defendant was charged with the offenses of which he was convicted in the municipal court.
Defendant appealed to the Law Division. After a trial de novo on the record, Judge Perskie found there was sufficient credible evidence that defendant operated a motor vehicle under the influence of alcoholic beverages and that he refused to take the breathalyzer test. With regard to the violation of the consent statute, Judge Perskie found that silence, in and of itself, does not always indicate refusal. He found that it must be proven defendant heard the statement that he was required to take the test and that, in the context of all of the circumstances, his silence constituted a refusal. In concluding that defendant's silence in this case amounted to a refusal, Judge Perskie said:
I am satisfied that the defendant heard and understood the statement that he had an obligation to take it and I am not satisfied that the police had an obligation to, if not tie him on, to put the hose in his hand or in his mouth, I do
not think that is required. I think that silence can be refusal and it may not be refusal, depending on the specific facts of the case. Here I'm satisfied, given his knowing attempt to avoid apprehension, given his resisting arrest, that he had sufficient awareness of his circumstances to know what he was doing and his silence under these circumstances in my view constitutes a refusal and I so conclude.
We first observe from our view of the record that Judge Perskie was entirely correct in holding that there was sufficient credible evidence in the record to conclude that defendant was guilty of operating a vehicle in violation of N.J.S.A. 39:4-50. We have no warrant to reverse determinations of credibility or other findings of a trial court where they could reasonably have been ...