August 27, 2007
STATE OF NEW JERSEY
ORDER ON MOTION
BEFORE PART: H JUDGE(S): STERN SABATINO LYONS
MOTION FILED: 08/20/2007
BY: STATE OF NJ ANSWER(S) FILED: 8/24/2007
BY: ERNEST SPELL SUBMITTED TO COURT: 8/27/2007
THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS ON THIS 28TH DAY OF AUGUST, 2007, HEREBY ORDERED AS FOLLOWS:
MOTION BY STATE OF NJ GRANTED DENIED OTHER - FOR STAY
The State moves for a stay of our decision in this matter "pending disposition and resolution of the State's petition for certification." Defendant joins the application as he apparently will seek certification following our affirmance of the conviction for refusal to submit to a breathalyzer test.
The State contends that we acted beyond our authority when we "directed that the additional instruction [on the breathalyzer test standard statement] be read in all cases of refusal, a change which can only be promulgated by the Executive Branch."
Although no motion was presented to us for reconsideration, we note that we did not order the promulgation of any new rule or form, as opposed to the reading of the entire present form as a matter of proof to sustain a conviction. Moreover, we expressly stated that we were not promulgating a rule or exercising supervisory power, but were interpreting the requirements of evolving case law. N.J.S.A. 39:4-50.2a, now relied on by the State, refers to guidelines of the Attorney General, and we do not read State v. Widmaier, 157 N.J. 475, 498-99 (1999) as holding that only the Director of the Motor Vehicle Commission can order a change to the form for purposes of sustaining a conviction.
Nevertheless, given the impact of our prospective decision concerning reading the additional instruction of the form, we grant the State's application for a stay pending proceedings on the State's petition for certification. If certification is granted, the stay shall continue pending the outcome of the appeal unless the Supreme Court decides otherwise. If the petition for certification is denied, the stay shall be vacated effective on the first day of the second month following the denial.
EDWIN H. STERN, P.J.A.D.
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