February 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOAN M. QUINN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 70-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2007
Before Judges Winkelstein and Fuentes.
Defendant Joan M. Quinn was tried and convicted in Mullica Township Municipal Court of refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a; and careless driving, N.J.S.A. 39:4- 97.*fn1 Defendant was again convicted on these same charges in a trial de novo before the Law Division. R. 3:23-8; State v. Johnson, 42 N.J. 146, 157 (1964). The Law Division made a series of factual findings from the evidence presented before the municipal court. We defer to these findings because they were well-supported by the record. State v. Locurto, 157 N.J. 463, 471 (1999).
Because defendant's appeal is limited to her conviction under N.J.S.A. 39:4-50.4a, we will limit our factual recitation to the events relevant to the administration of the breathalyzer test. Mullica Township Police Officer Erik Carricarte arrested defendant for driving while intoxicated.*fn2 Carricarte placed defendant in a police car and transported her to the Mullica Township police station. Police Officer Brian Zeck, a certified breathalyzer operator, was the officer responsible for administering the breathalyzer test.
Once at the station, Carricarte read defendant her rights under Miranda*fn3 as well as the New Jersey Motor Vehicle Commission Standard Statement, formally advising defendant of her obligation to submit to the taking of breath samples for the purpose of determining the level of alcohol content in her blood. In response to this statement, defendant initially responded: "I don't understand, I think I want an attorney." Zeck then re-read the section of the statement that informed her, in clear direct language, that her right to counsel under Miranda did not apply to the taking of the breath samples. Defendant then consented to the taking of the breath test, responding: "Yes, I will do that."
After taking the first breath sample, Zeck informed defendant that she was required to submit to a second test. This time, defendant refused, responding: "[N]o, I don't think so." When Zeck again asked her to submit to a second test, defendant did not respond.
Judge Neustadter further found that
[d]efendant stated that she did not know that two tests were required and she would not consent. [Zeck] explained [to defendant] that a second sample was required as standard procedure to verify the accuracy of the test. When she refused to give another test [sic] she was charged with refusal. The defendant, Joan Quinn, testified that she was confused because the Miranda warnings told her she had a right to an attorney but the standard statement read to her said she did not have the right to an attorney for the taking of the breathalyzer samples. Defendant testified that after she provided the first sample she was upset that the officer hollered out the reading of .15.
And then she decided to not submit any additional samples.
Against these facts, the Law Division judge concluded that the State had presented sufficient evidence to prove that defendant had violated N.J.S.A. 39:4-50.4a. In reaching this conclusion, Judge Neustadter relied on State v. Widmaier, 157 N.J. 475, 488 (1999), in which the Supreme Court held that anything short of unconditional, unequivocal assent to an officer's request constitutes sufficient evidence to sustain a charge of refusal under the statute. We reaffirmed this principle in State v. Duffy, 348 N.J. Super. 609, 612 (App. Div. 2002).
Defendant now appeals, raising the following arguments:
ON APPEAL FROM THE JUDGMENT OF THE MUNICIPAL COURT, THE SUPERIOR COURT'S FAILURE TO FIND THAT APPELLANT'S FAILURE TO PROVIDE A SECOND BREATH SAMPLE WAS DUE TO APPELLANT'S CONFUSION WAS AN ERROR AND ACCORDINGLY, THE SUPERIOR COURT'S JUDGMENT THAT APPELLANT WAS GUILTY OF REFUSAL TO TAKE A BREATHALYZER TEST SHOULD BE REVERSED.
THE FINDING OF THE SUPERIOR COURT THAT APPELLANT REFUSED TO TAKE A SECOND BREATHALYZER TEST WAS AN ERROR IN VIEW OF THE TYPE OF  BREATHALYZER MACHINE USED TO TEST APPELLANT AND ACCORDINGLY, THE JUDGMENT OF THE SUPERIOR COURT SHOULD BE REVERSED.
We agree with Judge Neustadter's analysis and thus affirm substantially for the reasons he expressed in his well-reasoned, oral opinion delivered from the bench on January 6, 2006. Defendant's argument in Point II lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The particular capabilities of any given breathalyzer machine does not curtail the State's right to obtain more than one breath test, N.J.S.A. 39:4-50.2, nor diminish defendant's statutory obligation to submit to a second test.