On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 80-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges S. L. Reisner and Gilroy.
This is defendant's second appeal from his conviction of refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a.
On May 30, 2004, defendant was issued motor vehicle summonses in Linwood, charging him with violations of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a); refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2;*fn1 reckless driving, N.J.S.A. 39:4-96; and speeding, N.J.S.A. 39:4-98. After trial in the municipal court, defendant was found guilty of DWI and refusing to submit to a breathalyzer test. The remaining charges were dismissed. Defendant was sentenced as a third offender under the DWI statute and as a first offender under the refusal statute. On appeal to the Law Division, defendant was acquitted of DWI and found guilty of the refusal charge.
Because defendant had two prior convictions for DWI, the Law Division sentenced defendant as a third offender under the refusal statute. On appeal, we affirmed. State v. Marek, No. A-3285-04 (App. Div. March 9, 2006). On petition for certification, the Supreme Court reversed and summarily remanded the matter to the municipal court for a new trial, in light of the Court's then-recent decision of State v. Cummings, supra; State v. Marek, 187 N.J. 77 (2006).
On remand, defendant was again found guilty of refusal in the municipal court and sentenced as a third offender under the refusal statute to a revocation of his driving privileges for ten years, subject to a credit of one year and nine months for the period that defendant's driving privileges were suspended during the pendency of the first appeal; a $1,000 fine; and was directed to serve twenty-four hours at an approved Intoxicated Driver Resource Center. All other appropriate penalties and costs were also imposed. On appeal, the matter was tried de novo before Judge Neustadter on February 8, 2007. On February 14, 2007, the trial judge issued a six-page written opinion, determining defendant guilty beyond a reasonable doubt of refusing to submit to a breathalyzer test. He also imposed the same penalties as the municipal court; except, he credited defendant 765 days for the time period when he was suspended during the pendency of his first appeal.
In his opinion, Judge Neustadter stated in relevant part:
Defendant argues that he did not refuse to submit to a breathalyzer test. It is well established that anything other than an unequivocal "yes" to a request by an officer to submit to a breathalyzer test constitutes a refusal in violation of N.J.S.A. 39:4-50.2. State v. Widmaier, 157 N.J. 475 (1999). Even if a defendant verbally assents to the giving of the breath sample, his subsequent defiant attitude and conduct during the test can constitute refusal. State v. Geller, 348 N.J. Super. 359 (Law Div. 2001). Additionally, an initial refusal cannot be "cured" by a subsequent statement by a defendant that he will submit to a breath test. State v. Corrado, 184 N.J. Super. 561, 568 (App. Div. 198).
Here, although defendant verbally agreed to submit to a breathalyzer test, his conduct of feigning blowing into the machine twice was less than an unequivocal "yes" to a request to provide a breath sample and constituted a constructive refusal under State v. Geller. This constructive refusal cannot be cured by defendant's offer to take a third breath test after failing to give a sample on the first two. During his trial in Linwood City Municipal Court, defendant presented former New Jersey State Trooper Francis X. Tobey as an expert on the administration of the breathalyzer test. Mr. Tobey testified it was his opinion the breathalyzer test checklist was filled out incorrectly, and Sgt. Weber needlessly reset the machine before testing defendant a second time. He also testified that if Sgt. Weber failed to turn the knob on the breathalyzer machine to the "take" position before asking defendant to blow into the breathalyzer machine, no breath sample could enter the machine. The [c]court finds testimony of defendant's expert irrelevant because the manner in which the breathalyzer checklist was completed and the officer's act of resetting the machine have no bearing on the issue of whether defendant is guilty of refusal. The [c]court also finds sufficient credible evidence was elicited on the record below ...