On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Docket No. 59-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges S.L. Reisner and Baxter.
Defendant Matthew Thornton appeals from a December 15, 2006 conviction for refusal to submit to a breathalyzer exam, N.J.S.A. 39:4-50.4a. After being found guilty in the municipal court of the Township of South Brunswick, defendant appealed to the Law Division, where a trial de novo again resulted in his conviction. The Law Division imposed a sentence of seven months loss of driving privileges, assessed the appropriate fines and penalties, and stayed the sentence pending appeal to this court.
The facts were stipulated; the only issue before either court was whether conviction was precluded because police read to defendant the February 1, 2001 standard form for motorists who refuse the breathalyzer exam, rather than the form that was adopted on April 26, 2004. The 2004 form lists more severe penalties for refusal, including a minimum license suspension of seven months instead of the six months specified in the 2001 form.
Defendant argues that he cannot be found guilty of violating N.J.S.A. 39:4-50.4a because the State failed to comply with the procedures specified in N.J.S.A. 39:4-50.2(e);*fn1 and that even if conviction is warranted, the suspension of his driving privileges should be reduced from seven months to six months, so as to be consistent with the six-month period of suspension contained in the February 1, 2001 form that the officer read to him.
Both contentions lack merit. The 2001 form the officer read to defendant advised him that if he refused to submit to the breathalyzer exam, he would be charged with refusal, and if convicted, his license could be suspended for no less than six months and no more than two years. Defendant stated he would give a breath sample at a later time; however, a defendant has no right to delay the administration of a breath test. State v. Widmaier, 157 N.J. 475, 498 (1999). Such a response constitutes refusal, for which a defendant may be convicted of a violation of N.J.S.A. 39:4-50.4a. See ibid. Moreover, the penalty of a seven-month suspension the Law Division imposed was within the range of penalties of which defendant was advised prior to his refusal.
We are mindful of the decision in State v. Spell, 395 N.J. Super. 337, 348 (App. Div. 2007), in which we held that effective October 1, 2007, officers must read the entire form to all motorists arrested for driving while intoxicated. There, the officer did not read the paragraph that advises a defendant that an ambiguous or conditional answer to a request to submit to a breathalyzer test will be treated as a refusal to submit to the exam. Id. at 343-44.
Here, as the exhibit that was admitted into evidence clearly demonstrates, the officer did read the paragraph that describes the consequences of a conditional or ambiguous answer. Under the circumstances presented here, where the only material difference between the two forms was the length of the sentence,*fn2 and where defendant was sentenced within the sentencing range specified in both forms, we find no basis upon which to conclude that a refusal prosecution was unwarranted or that the sentence was unlawful. We affirm the conviction and sentence, and remand to the Law Division to vacate the stay of the sentence, and to set a date for defendant to commence serving the sentence.