The opinion of the court was delivered by: Stein, J.
On certification to the Superior Court, Appellate Division.
This appeal primarily requires us to determine what constitutes a refusal to take a breathalyzer test. When defendant John Widmaier was arrested for driving while intoxicated, the arresting police officer asked him to take a breathalyzer test and informed him that his right to consult with an attorney did not apply to the taking of breath samples. Defendant responded to the officer's request by saying only that he wanted to place a telephone call to his attorney. After the police officer again instructed defendant that his right to consult with an attorney did not apply to the taking of breath samples, defendant agreed to submit to a breathalyzer test but requested that his attorney be present "for calibration purposes." The officer determined that defendant's response constituted a refusal to take the test. Defendant was convicted of driving while intoxicated but acquitted of the charge of refusing to take a breathalyzer test. The primary issue before us is whether, in so responding, defendant "refused" to submit to the breathalyzer test within the meaning of N.J.S.A. 39:4-50.4a and in contravention of N.J.S.A. 39:4-50.2. We also address whether the double jeopardy clause of the federal and state constitutions bars the State from appealing defendant's acquittal of the refusal charge.
At 3:04 a.m. on July 14, 1996, police officer Wayne Walker of the Little Egg Harbor Township Police Department was on duty in a marked patrol car, waiting to make a right-hand turn from Parkertown Drive onto the southbound lane of Route 9. After defendant, who was driving south on Route 9, passed Parkertown Drive, Walker made a right-hand turn onto Route 9 and proceeded on that road a few hundred yards behind defendant's vehicle.
Walker observed defendant negotiate a tight curve, at which time defendant's left front and rear tires crossed the center line of Route 9 into the northbound lane. Walker testified that the area was well illuminated and that he did not observe any traffic or obstacles that might have interfered with defendant's ability to maintain his lane. Walker continued to follow defendant's vehicle on Route 9 and observed defendant again cross the center line. Defendant continued south on Route 9 until, without using his turn indicator lights, he abruptly made a sharp left turn onto Great Bay Boulevard in Tuckerton Borough. Defendant then traveled eastbound on Great Bay Boulevard and made a right turn onto Radio Road. In maneuvering that turn, defendant cut the wheel hard, and his vehicle began to skid toward the guardrail. After defendant appeared to have regained control of the car, his tires lost traction. Again, defendant was able to straighten the vehicle out of the skid. At that point, Walker activated his overhead lights. Defendant pulled over to the side of the road, turned off his engine, and through the open sunroof placed his keys on top of his car.
As Walker approached defendant's vehicle, he smelled alcohol. Walker requested that defendant produce his driver's license, registration, and insurance card. The officer observed defendant fumble as he searched through his wallet for the requested documents; he was able to produce only his driver's license and registration. Asked whether he had had anything to drink that evening, defendant responded in the negative. Defendant spoke in a slow, slurred whisper, his face was flushed, and his eyes were red and watery. Defendant staggered as he complied with the officer's request to step out of his car and walk to the rear of his vehicle. Although the ground surface was flat macadam, defendant stood with his feet wide apart in order to maintain his balance. Defendant assumed a rigid posture but periodically swayed from side to side. Asked by the officer if he had any injuries, defendant replied that he had diabetes.
The officer requested that defendant perform two field sobriety tests. Defendant was unable to perform the first test, which required him to stand for thirty seconds with his feet together, his hands down by his side, his head tilted back, and his eyes closed. Defendant did not perform the second test because he said he did not understand Walker's instructions; Walker had asked defendant to stand on one leg and count up to thirty.
Defendant was arrested for driving while intoxicated, in violation of N.J.S.A. 39:4-50, and was informed of his Miranda rights as he was placed in the back of Walker's patrol car. Although the rear passenger compartment of the patrol car was separated from the driver's area by plexiglass, Walker noticed that an odor of alcohol was emanating from the passenger compartment.
Defendant was taken to the Little Egg Harbor Township police headquarters. At headquarters, defendant's handcuffs were removed, and defendant was placed in a holding area. Walker then turned on the breathalyzer to warm it up, inserted a video tape into the video camera, and had defendant sit within the camera's view. When the breathalyzer was ready and the camera was filming, Walker read aloud paragraphs one through ten of the "standard statement" prepared by the Director of the Division of Motor Vehicles pursuant to N.J.S.A. 39:4-50.2(e):
1. You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs or with blood alcohol concentration of 0.10% or more.
2. You are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
3. A record of the taking of the samples, including the date, time, and results, will be made. Upon your request, a copy of that record will be made available to you.
4. Any warnings previously given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purposes of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician, or anyone else present, for the purpose of taking breath samples.
5. After you have provided samples of your breath for chemical testing, you have the right to have a person or physician of your own selection, and at your own expense, take independent samples and conduct independent chemical tests of your breath, urine, or blood.
6. If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.
7. According to N.J.S.A. 39:4-50.4a, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked for a period of six months. If your refusal conviction is in connection with a second offense under this statute, your license to operate a motor vehicle will be revoked for a period of two years. If your refusal conviction is in connection with a third or subsequent offense under this statute, your license to operate a motor vehicle will be revoked for a period of ten years. The Court will also fine you a sum of between [sic] $250 and $500 for your refusal conviction.
8. Any license suspension or revocation for refusal conviction will be independent of any license suspension or revocation imposed for any related offense.
9. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred by the Court to an Intoxicated Driver Resource Center and you will be required to satisfy the requirements of that center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so. 10. I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit to the samples of your breath?
Defendant's reply to the above-quoted statement was, "Sir, I would like you to call Francis Xavier Moore, my attorney."
The instructions accompanying the standard statement indicate that if the person remains silent, states that he has the right to remain silent, or says he wishes to consult an attorney, physician, or other person, the police officer shall read the following additional statement:
I have previously informed you that the warnings given to you concerning your right to remain silent and your 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 delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. If you (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, then you ...