On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Appeal No. 7-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Defendant, Nancy Ganjoin, appeals from the affirmance by a judge of the Law Division, following trial de novo on the municipal court record, of her conviction for refusal to undergo a breathalyzer test, in violation of N.J.S.A. 39:4-50.4a. On appeal, she presents the following arguments:
Ganjoin did not refuse to provide a breath sample.
If Ganjoin was not providing a proper sample, the police officer should have read her the additional implied-consent standard statement required by N.J.S.A. 39:4-50.2.
Having reviewed the record presented, as well as the legal arguments of counsel for the parties, we affirm the conviction, but remand for a correction of the fines imposed in the sentence.
N.J.S.A. 39:4-50.2(e) requires that police officers read to all defendants arrested for driving while intoxicated (DWI) a standard statement, prepared by the Director of the Division of Motor Vehicles, before seeking to administer a breathalyzer test. See also State v. Widmaier, 157 N.J. 475, 489 (1999). This "New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles" informs the arrestee of the nature of the charge; the statutory requirement that the arrestee submit to an analysis of blood alcohol content by means of a breathalyzer test; the absence of any right to refuse the test, to delay it, or to require the presence of counsel or a physician; the right to independent sampling; and the penalties for refusal. The paragraphs of the statement pertinent to refusal provide:
6. If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.
7. Any response from you that is ambiguous or conditional, in any respect, to your giving consent to the taking of breath samples will be treated as a refusal to submit to breath testing.
8. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.
9. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.
10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an Intoxicated Driver Resource Center, and you will be required to satisfy the requirements of that Center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.
The Court has recognized that, by requiring that the statement be read, "the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Widmaier, supra, 157 N.J. at 489. Anything short of such a response, the Court has found, "would undermine law enforcement's ability to remove intoxicated drivers from the roadways." Id. at 497; see also State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007).
The statutorily required statement has an additional component, prefaced by the following instruction:
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 ...