On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. A-24-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Shawn W. Lightcap was convicted in the Franklin Township Municipal Court of refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2, and traveling above the posted speed limit, N.J.S.A. 39:4-98c. The municipal court judge also acquitted him of driving while intoxicated, N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. Defendant was sentenced to the mandatory minimum penalties provided for a first-offender of refusing to submit to the breathalyzer test, as well as the additional fines and penalties associated with the conviction for speeding.
At the time these summonses came before the municipal court, the State's burden of proof for the charge of refusing to submit to a breathalyzer test was preponderance of the evidence. After his conviction in the municipal court, defendant filed a petition for a de novo review before the Law Division. By the time the matter came before the Law Division, the Supreme Court had declared that the appropriate burden of proof for the charge of refusing to submit to a breathalyzer test was beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 89 (2005). Defendant's petition for a de novo review of his conviction for refusing to submit to a breathalyzer test and speeding was heard by Superior Court Judge Walter L. Marshall, Jr. After reviewing de novo the evidence presented before the municipal court, and applying to that evidence the burden of proof established under Cummings, Judge Marshall again found defendant guilty of refusing to submit to a breathalyzer test and speeding.
Defendant now appeals raising the following arguments.
A. The Law Division Judge, Walter L. Marshall, Jr., Erred in Finding that the State had Proven Beyond a Reasonable Doubt that Defendant, Shawn W. Lightcap, was Guilty of Violating Summons No. 0805-F-5923, Charging Him with Refusing to Perform a Breathalyzer Test.
1. The Failure of the State to Offer Proof as to the Breathalyzer in Question Being in Proper Operating Condition as of the Breathalyzer Test Attempted by Lightcap Created at the Very Least Reasonable Doubt as to Whether Lightcap Willingly Refused the Breathalyzer Test.
2. Upon Determining that the Actions of Lightcap in Attempting the Requested Breathalyzer Tests Constituted a Refusal, the State was Required to Read the Last Paragraph of the New Jersey Motor Vehicle Commission Standard Statement for Operating a Motor Vehicle to Lightcap and the Failure to so Read that Statement Creates at Least Reasonable Doubt.
B. Summons No. 0805-F-5923 Charges Defendant, Shawn W. Lightcap, with Refusal to take a Breath Test in Violation of N.J.S.A. 39:4-50.2, Whereas the Correct Charge for a Refusal is N.J.S.A. 39:4-50.4(a) so that the Conviction of Lightcap Must be Reversed Due to the Improper Statutory Violation Being Charges.
C. If the Conviction of the Defendant, Shawn W. Lightcap, is Affirmed, the Amended Order of August 18, 2005 Must be Modified to Eliminate the Violent Crimes Compensation Board and Safe Neighborhood Penalties and the Surcharge Assessed Against Him in the Amended Order of August 18, 2005.
We reject these arguments and affirm substantially for the reasons expressed by Judge Marshall in his well-reasoned memorandum ...