On appeal from Superior Court of New Jersey, Law Division, Morris County, Appeal No. 06-020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and King.
Defendant was charged in the Borough of Victory Gardens Municipal Court with driving while under the influence of alcoholic beverages, in violation of N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2; and careless driving, in violation of N.J.S.A. 39:4-97.
On the scheduled trial date in municipal court, defendant pled guilty to the careless driving charge and the State dismissed the driving while under the influence charge because it did not have sufficient evidence to prove beyond a reasonable doubt that defendant actually operated his car while under the influence. The parties agreed to submit the refusal to submit to a breathalyzer test charge to the court based on the facts set forth in the arresting officer's written report without the presentation of testimony. The municipal court concluded based on the facts set forth in that report that the State had proven all the elements of the offense of refusal to submit to a breathalyzer test. The court then sentenced defendant as a third offender to a ten-year suspension of his driver's license, twelve hours of service in an Intoxicated Drivers Resource Center and a $1,000 fine.
On a de novo appeal based on the municipal court record, the Law Division also found defendant guilty of the refusal to submit to a breathalyzer test charge and reimposed the same sentence imposed by the municipal court.
On his appeal to this court, defendant initially argues that the Law Division erred in amending the municipal court complaint to charge the offense of refusal to submit to a breathalyzer test under N.J.S.A. 39:4-50.4a rather than under N.J.S.A. 39:4-50.2. This argument is clearly without merit and does not require extended discussion. R. 2:11-3(e)(2).
N.J.S.A. 39:4-50.2 does not proscribe a motor vehicle offense or set forth any penalties for a violation. It simply provides:
Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of [N.J.S.A.] 39:4-50. [N.J.S.A. 39:4-50.2(a).]
The only section of Title 39 that prohibits a refusal to submit to a breathalyzer test and sets forth the penalties for such a refusal is N.J.S.A. 39:4-50.4a. See State v. Cummings, 184 N.J. 84, 90 n.1 (2005). Therefore, the Law Division correctly amended the complaint charging defendant with the refusal to submit to a breathalyzer test to recite the correct statutory provision. See State v. Koch, 161 N.J. Super. 63, 66 (App. Div. 1978).
The primary issue presented by the appeal is whether the police report which the parties stipulated into evidence provided a sufficient evidential foundation for defendant's conviction for refusal to submit to a breathalyzer test. To establish this motor vehicle offense, the State must prove that
(1) "the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor"; (2) "the person was placed under arrest"; and (3) "[the person] refused to submit to the test upon request of the officer" after being informed of the consequences of such a refusal in accordance with N.J.S.A. 39:4-50.2(e). N.J.S.A. 39:4-50.4a; see Cummings, supra, 184 N.J. at 96; State v. Mulcahy, 107 N.J. 467, 475 (1987). Each of these elements must be proven beyond a reasonable doubt. Cummings, supra, 184 N.J. at 95-96.
Defendant does not dispute that he was placed under arrest and that he refused to submit to a breathalyzer test after being informed of the consequences of such a refusal. The only issue is whether the police report provided an adequate factual foundation for a finding that the arresting officer had "probable cause" ...