On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 06-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Following a trial de novo on the record created in the Watchung Township Municipal Court, Judge Robert B. Reed of the Superior Court, Law Division, Somerset County, entered an order dated October 19, 2006, that memorialized the court's finding that defendant Bong Chang was guilty of refusing to submit to a breathalyzer test.*fn1 The judge issued a written decision dated October 17, 2006, that set forth the basis for his order.
Defendant was sentenced as a second offender to a two-year loss of driving privileges and appropriate fines, costs and assessments.
On this appeal defendant asserts a single point of error:
POINT I: DUE TO THE FAILURE OF THE ARRESTING OFFICER TO READ THE ADDITIONAL STATEMENT ON THE STANDARD STATEMENT AFTER DEFENDANT'S AMBIGUOUS AND CONDITIONAL RESPONSE TO A REQUEST FOR A BREATH SAMPLE, A MATERIAL ELEMENT TO A VIOLATION OF N.J.S.A. 39:50.2 WAS NOT PROVED.
Substantially for the reasons articulated by Judge Reed in his written opinion and for the additional reasons below, we affirm.
The material facts are not in dispute and can be briefly recited. Following a report of a hit-and-run accident in the parking lot at the Somerset Hills Hotel, in Warren, on August 10, 2005, Officer Brad Sporer of the Watchung Police Department effectuated a stop of defendant's vehicle because it fit the description of the vehicle that left the scene of the accident.
The officer testified that when he approached the driver's window, he detected a strong smell of alcohol, and consequently, he had defendant perform various field sobriety tests. On the basis of defendant's inability to satisfactorily complete the tests, the strong odor of alcohol and defendant's slurred speech, the officer placed defendant under arrest and transported him to the Watchung police headquarters.
At the police headquarters, Officer Sporer informed defendant of his Miranda*fn2 rights and also read to him the eleven numbered paragraphs of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (Standard Statement), pursuant to N.J.S.A. 39:4-50.2. The full text of those eleven paragraphs is as follows:
1. You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs, or with a flood alcohol concentration at, or above, that permitted by law.
2. The law requires you 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.
3. A record of the taking of the sample, including the date, time, and results, will be made. Upon your request, a copy of that record will be made available to you.
4. Any warnings previously 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 the 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. You have no legal right to have an attorney, physician, or anyone else present, for the purpose of taking the breath samples.
5. After you have provided samples of your breath for chemical testing, at your own expense, you have the right to have a person or physician of your own selection, take independent samples and conduct independent chemical tests of your breath, urine, or blood.
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 ...