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State v. Napoli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELLI NAPOLI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 90-2005.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 18, 2007

Before Judges Parrillo and Sapp-Peterson.

Defendant Kelli Napoli appeals from her conviction in East Brunswick Township Municipal Court and later in the Law Division for refusing to submit to a breathalyzer test, contrary to N.J.S.A. 39:4-50.2. We affirm.

Napoli was arrested after her vehicle was observed around 2:30 a.m. on May 3, 2005, swerving between lanes on Route 18 in East Brunswick. She failed a number of sobriety tests conducted at the scene. She was then arrested and transported to East Brunswick Township Police Department where she was asked to submit samples of her breath for testing. She refused and was charged with refusing to submit to a breathalyzer test.

In addition, she was also charged with failure to maintain her lane, contrary to N.J.S.A. 39:4-88(b); careless driving, contrary to N.J.S.A. 39:4-97; and driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. She was found not guilty of DWI and convicted of the remaining charges. Napoli filed a de novo appeal of the refusal conviction only. Following a de novo review of the record, the Law Division judge found Napoli guilty of the refusal charge.

The sole issue before us is whether the breathalyzer officer was required to read to Napoli the additional statement, known as the bottom half, from the New Jersey Motor Vehicle Commission's Standard Statement for Operators of a Motor Vehicle (Statement) once Napoli responded "no" to the question of whether she would submit her breath samples for testing. There is no dispute that the breathalyzer operator did not read the bottom half to Napoli as she argued he was required to do. Both Judge Casey in the Municipal Court and later Judge Gelade in the Law Division rejected this argument. We do as well. Pursuant to N.J.S.A. 39:4-50.2(e), the breathalyzer officer is required to read the Statement to a DWI arrestee. The Statement includes eleven advisory statements known as the "top half" of the form. Statement Eleven states, "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 the samples of your breath? Answer:_____________________[.]" Additional instructions are contained in what is known as the "bottom half" of the form:

(ADDITIONAL INSTRUCTIONS FOR POLICE OFFICER) IF THE PERSON REMAINS SILENT OR STATES, OR OTHERWISE INDICATES, THAT HE/SHE REFUSES TO ANSWER ON THE GROUNDS THAT HE/SHE HAS A RIGHT TO REMAIN SILENT, OR WISHES TO CONSULT AN ATTORNEY, PHYSICIAN, OR ANY OTHER PERSON, OR IF THE RESPONSE IS AMBIGUOUS OR CONDITIONAL, IN ANY RESPECT WHATSOEVER, THEN THE POLICE OFFICER SHALL READ THE FOLLOWING ADDITIONAL STATEMENT: FULL TEXT OF ADDITIONAL STATEMENT FOLLOWS:

I 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 to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing 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.

Once again, I ask you, will you submit to giving samples of your breath?

Answer:_______________________

As the additional instructions to the officer make clear, the "bottom half" is read when the arrestee remains silent, expresses a desire to consult with an attorney, physician, or another person, or gives a response that is ambiguous or conditional. In reading this portion to the arrestee, the officer "further ensure(s) that suspects understand that an ambiguous or conditional answer to a request to submit to a breathalyzer test will be deemed a refusal." State v. Widmaier, 157 N.J. 475, 498-99 (1999).

Judge Gelade, based upon his de novo review of the record, found:

I find, clearly, that under both Widmaier [supra], [State v. Cummings, 184 N.J. 84 (2005)], as well as [State v. Duffy, 348 N.J. Super. 609 (App. Div. 2001)], that the intent of the Court, and the intent of the Motor Vehicle Commission, in drafting the addendum, that the standard statement was only to be used by the police officers, where there is some statement made by the defendant, that is either conditional or ambiguous, or is part of the remainder of wishing to consult an attorney, et cetera.

Only, in those cases, where there is some lack of understanding of the eleven statements, because it indicates -- it would indicate to the officers that maybe there is something about this defendant that, although those eleven statements didn't sink in, and, therefore, we're going to have you repeat them again in substance, to give the defendant one last chance to make a final decision in this case.

The defendant clearly understood what the officer said. She never indicated in the report anything to the contrary. He said, she gave an unequivocal "no." And, therefore, there was no indication that she was trying to retain an attorney or physician, or any other person. That she believed that she had a right to remain silent, or that she, in any way, had feelings of ambiguity, other than her consent was conditional.

Under those circumstances, it is not necessary for the officer to read the additional statement.

Judge Gelade thus determined that defendant's "no" response was unequivocal. We are bound by the trial judge's credibility determinations, State v. Locurto, 157 N.J. 463, 470-71 (1999), and although we owe no special deference to a trial judge's interpretation of the law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we agree with Judge Gelade's determination that the officer was not required to read the bottom half of the Statement to defendant.

Affirmed.

20070613

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