This matter comes before the court on appeal pursuant to R. 3:23-8. The issue presented is whether a driver who provides one breath sample may properly be convicted for a violation of N.J.S.A. 39:4-50.2 if he refuses to give a second sample.*fn1 This case appears to be one of first impression in this State, and for the reasons that follow, the judgment of conviction is affirmed.
On or about July 29, 1990, Officer David Pipeling of the Point Pleasant Beach Police Department was on patrol when he performed a motor vehicle stop on the operator, defendant herein, for driving without headlamps in violation of N.J.S.A. 39:3-56. After he approached the vehicle and asked defendant for his credentials, the officer detected the odor of alcohol
emanating from the vehicle. Believing defendant might be intoxicated, the officer asked defendant to step to the side of the road. After defendant was provided a recital of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), another officer came upon the scene and administered several psychophysical tests. As a result of these tests and other circumstances, defendant was placed under arrest and transported to police headquarters where he was asked to perform another set of psychophysical tests.
Defendant was then provided a recital of the drunk driving influence report, commonly referred to as the refusal form or "paragraph 36." Defendant indicated, at that time, that he would submit to the breathalyzer test.
Patrolman Richard Otto, a certified breathalyzer operator, performed one complete test which yielded a result of 0.08% blood alcohol concentration. Patrolman Otto prepared the machine for a second test, but defendant refused to submit any additional samples. The officer then read the bottom portion of "paragraph 36," warned defendant of the potential penalties involved, and explained to defendant that the second test was required to verify the accuracy of the first test. Although defendant's testimony differs from that of the officer's with respect to the reading of this portion of the form, this court is bound by this finding of fact of the trial Judge. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).
Municipal court judge James Liguori found defendant not guilty of operating under the influence, but guilty of N.J.S.A. 39:4-50.2 for refusing to submit to the second breathalyzer test. The court reasoned that N.J.S.A. 39:4-50.2 and -50.4a must be read together, and that N.J.S.A. 39:4-50.2 refers to the taking of samples.*fn2 The judge also relied on the wording of "paragraph
36" and the obligation of the police officer to read this to defendant under N.J.S.A. 39:4-50.2(e).
The case at bar requires this court to determine whether the giving of a single breath sample is sufficient to defeat a finding of guilty of N.J.S.A. 39:4-50.2. In other words, is the giving of one breath sample by defendant sufficient compliance with the refusal statute. Defendant argues that N.J.S.A. 39:4-50.2 and -50.4a are void on the grounds of vagueness and violative of due process because the conduct prohibited or commanded is expressed in terms ...