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State v. Thulin


November 6, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. 2006-053.

Per curiam.


Argued: September 24, 2008

Before Judges Parrillo, Lihotz and Messano.

Defendant, Randall Thulin, appeals his conviction for refusal to submit to a Breathalyzer test, after a trial de novo in Superior Court. R. 3:23-8(a). Following a single vehicle accident, the State police issued six municipal court summonses to defendant. One summons (no. 232006) described the offense as "refusal to submit to blood" and cited N.J.S.A. 39:4-50.2. No separate summons was issued for refusal to submit to a Breathalyzer test. The Law Division concluded defendant was guilty of violating N.J.S.A. 39:4-50.4a. The court relied on the State Trooper's testimony that he read the "New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle" to defendant as required by N.J.S.A. 39:4-50.2(e). The statement is commonly referred to as "paragraph 36."

On appeal, defendant's single argument is:


Defendant does not argue the evidence was insufficient to support the Law Division's finding that he refused to submit to a chemical breath test, but rather argues the charge, as issued, was not sustainable. Defendant asserts his conviction must be reversed because the failure to accurately state the charge he must defend against violates due process. We agree and reverse.

On June 12, 2004, defendant suffered injuries when the vehicle he was operating veered off the ramp for westbound Route 78 and struck the concrete barrier in three places. State Trooper Brian Green responded to the scene twenty-five minutes following the accident. When Trooper Green arrived, he observed the Newark Fire Department had cut defendant from his vehicle and defendant was being treated in an ambulance by the Newark First Aid Squad (FAS).

Trooper Green described defendant, noting his eyes were red and watery, his movements were slow, and "he had a strong [odor] of alcoholic beverage on his breath." In response to Trooper Green's question, defendant acknowledged he had just left a friend's house and admitted he consumed one beer. Three empty beer containers were visible on the passenger-side floor of defendant's vehicle.

The FAS transported defendant to Beth Israel Hospital, where he was treated for his injuries. Trooper Green followed the FAS vehicle. While at the hospital, Trooper Green read defendant his Miranda*fn1 rights.

Trooper Green also read to defendant paragraph 36. This refers to a lengthy statement describing a defendant's obligation to submit to a chemical breath test for the purpose of determining blood alcohol content. Following the taking of a chemical breath test, paragraph 36 explains a defendant has a right to "conduct independent chemical tests of [his] breath, urine or blood . . . ." N.J.S.A. 39:4-50.2(c). Additionally, the form states that if a motor vehicle operator "refuses to provide samples of breath for the purpose of conducting chemical tests to determine the content of alcohol in his or her blood, he or she will be issued a separate summons charging a violation of N.J.S.A. 39:4-50.2." State v. White, 253 N.J. Super. 490, 497 (Law Div. 1991). Trooper Green reported defendant refused. He then sought defendant's consent to submit to a blood test. Defendant declined.

Trooper Green issued six Uniform Traffic Tickets, charging defendant with reckless driving, N.J.S.A. 39:4-96, failure to maintain a traffic lane, N.J.S.A. 39:4-88, failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f), consuming an alcoholic beverage while operating a motor vehicle, N.J.S.A. 39:4-51a(a); driving while intoxicated, N.J.S.A. 29:4-50; and the final, which read "refusal to submit to blood," and cited N.J.S.A. 39:4-50.2.

At trial, much of Trooper Green's testimony on cross-examination, redirect and re-cross centered on whether he asked defendant to submit to a Breathalyzer or a blood test. Suffice it to say, the overall testimony was equivocal. Trooper Green did not ask defendant to submit to a Breathalyzer but rather read paragraph 36 and asked defendant to provide a blood sample.*fn2

The municipal court judge found defendant guilty of DWI; refusal to submit to a Breathalyzer; consumption of an alcoholic beverage while operating a motor vehicle, and failure to wear a seatbelt. The remaining charges were dismissed. Defendant appealed.*fn3

The Law Division conducted a de novo review bound by the evidentiary record of the municipal court. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Loce, 267 N.J. Super. 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993). The Law Division judge acquitted defendant of DWI, consumption of an alcoholic beverage while operating a motor vehicle, and failure to wear a seatbelt, because he found the charges were not independently sustainable beyond a reasonable doubt. However, the judge was persuaded that a refusal conviction, pursuant to N.J.S.A. 39:4-50.4a, was sustainable based upon Trooper Green's trial testimony that he read paragraph 36, and defendant did not unequivocally consent. State v. Widmaier, 157 N.J. 475, 489 (1999). Defendant's motion for reconsideration was denied. This appeal followed.

The trial testimony strongly suggests Trooper Green did not separately request defendant submit to a Breathalyzer test, but only that he recited paragraph 36. However, we are not asked to determine whether reading this legislatively mandated statement satisfactorily complied with the requirements of N.J.S.A. 39:4-50.2(a). Ibid. Defendant argues he was found guilty in violation of the implied consent statute for refusal to submit to a blood test, a conviction that is not sustainable. The question for our consideration is whether the charge, as issued, which included the parenthetical phrase "failure to submit to blood," inadequately provided defendant with notice of the charge against him and, if so, whether that defect is remediable or fatal to prosecution for refusal to submit to a breath test. See State v. Fisher, 180 N.J. 462, 465 (2004) (officer's failure to attest to probable cause by signing a traffic ticket was remedial defect and did not require dismissal of the charges alleged in the ticket).

"Our court rules, which govern the contents and issuance of traffic complaints and summonses, provide that the Uniform Traffic Ticket is to serve 'as the complaint, summons or other process . . . for all parking and other traffic offenses[.]'" Fisher, supra, 180 N.J. at 468 (quoting R. 7:2-1(b)). Additionally, because the refusal violation is a quasi-criminal offense, the rules of criminal practice control. Widmaier, supra, 157 N.J. at 493; State v. Cummings, 184 N.J. 84, 89 (2005).

The complaint is "a written statement of the essential facts constituting the offense charged[.]" R. 7:2-1(a). "Like a criminal indictment, its primary purpose is 'to inform a defendant of the charges he must defend against.'" Fisher, supra, 180 N.J. at 468 (quoting State v. Salzman, 228 N.J. Super. 109, 114 (App. Div. 1987), certif. denied, 110 N.J. 314 (1988)). Thus, the information contained in the complaint must contain all necessary information to enable a defendant to present his defense. See State v. Lutz, 309 N.J. Super. 317, 325 (App. Div. 1998) (summons describing offense as "Driving Under Influence" with a reference to N.J.S.A. 39:4-50 found to sufficiently inform the defendant of the offense charged).

Rule 7:2-5 allows "any technical insufficiency or irregularity in the . . . summons . . . may be amended to remedy any such technical defect." Amendments to "any process or pleading for any omission or defect therein or for any variance between the complaint and the evidence adduced at the trial" are also permitted, however, the amendment may not "charge[] a different substantive offense, other than a lesser included offense." R. 7:14-2.

As stated above, the summons and complaint issued in this matter described the offense as "refused to submit to blood" and cited N.J.S.A. 39:4-50.2 as the statute violated. That statute, known as "New Jersey's 'implied consent' statute, provides that drivers licensed in this State shall be deemed to have given their consent to the taking of breath samples 'for the purposes of making chemical tests to determine the content of alcohol in [their] blood[.]' N.J.S.A. 39:4-50.2(a)." State v. Ravotto, 169 N.J. 227, 233 (2001). Subsection (c) provides: "In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection." N.J.S.A. 39:4-50.2(c). Although a chemical test may not "be made or taken forcibly and against physical resistance," N.J.S.A. 39:4-50.2(e), a driver's failure to submit to a lawful police request to participate in a Breathalyzer test results in a loss of driving privileges for an extended period. N.J.S.A. 39:4-50.4a. Ibid.

The penalties for refusal to cooperate are imposed solely for refusal to submit to a chemical breath test. Under the statute, it is not an offense to decline law enforcement's request for a blood sample. See Ravotto, supra, 169 N.J. at 234-34 (implied consent statute pertains solely to breath tests); State v. Macuk, 57 N.J. 1, 13 (1970) (same); State v. Woomer, 196 N.J. Super. 583, 586 (App. Div. 1984) ("implied consent" law sets forth the standards governing the taking of a breath sample).

The State suggests the ticket notation was a "misprint" and argues there was sufficient evidence to prove beyond a reasonable doubt that defendant refused to submit to a Breathalyzer test. These arguments are specious. We no do not view defendant's challenge as an attempt to "exalt technical and literal strictness" at the expense of "essential justice." Fisher, supra, 180 N.J. at 471.

The proper focus of our review must be whether the complaint's inclusion of a statute citation with an incorrect description of the offense undercuts the fundamental purpose of the summons, namely, to provide defendant with "ample and fair notice of the nature of the charge against him[.]" State v. Latorre, 228 N.J. Super. 314, 319 (App. Div. 1988). The error will not be fatal to a prosecution if the alleged insufficiency did not "detract from the intended purpose of the challenged instrument and did not prejudice the rights of the defendant." Latorre, supra, 228 N.J. Super. at 320; see Fisher, supra, 180 N.J. at 471 (officer's failure to sign a DWI summons did not deprive the summons of its effectiveness); see also State v. Vreeland, 53 N.J. Super. 169, 173 (App. Div. 1958) (traffic complaint that failed to specify town not invalid); State v. Ryfa, 315 N.J. Super. 376 (Law Div. 1998) (same).

Examining the defect, we cannot conclude defendant was or should have been aware of the essential facts of the charge embodied in this complaint. Trooper Green repeatedly requested defendant submit a blood sample following the accident and testified he had a blood kit with him. Extraction of blood to test alcohol levels is specifically available to a defendant to rebut a Breathalyzer test result, as provided in subsection (c) of N.J.S.A. 39:4-50.2. However, police often use a blood sample as an alternative to a chemical breath test when a driver is physically unable to take a breath test or, as is the case here, a Breathalyzer machine was not readily available. Ravotto, supra, 169 N.J. at 232; Macuk, supra, 57 N.J. at 13. Trooper Green then issued a ticket with the stated charge referenced as a refusal to provide that blood sample.

It is fundamental that procedural due process requires notice and the opportunity to be heard. State v. Lisa, 391 N.J. Super. 556, 577-578 (App. Div. 2007), aff'd, 194 N.J. 409 (2008). A traffic ticket's primary function is to safeguard a defendant's right to procedural due process. Here, the confusion as to the nature of the offense resulting from the misstatement of the law would not have fully informed defendant of the essential facts of the charge against him. Fisher, supra, 180 N.J. at 471. Also, it cannot be suggested that the convicted offense was a lesser included offense of the one charged.

Viewing all relevant facts and circumstances, we conclude the described offense on the ticket was misleading and that error impermissibly infringed on defendant's rights. Thus, we can neither ignore this defect nor allow the State to cure beyond the thirty-day limitation period, pursuant to N.J.S.A. 39:5-3(a).

We are very mindful "the primary purpose behind New Jersey's drunk driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512 (1987). We emphatically acknowledge our conclusion in this matter is not intended to undermine law enforcement's ability "to remove intoxicated drivers from our roadways." State v. Chun, 194 N.J. 54, 71, cert. denied, U.S.L.W. 3197 (U.S. Oct. 6, 2008). Our determination is one of constitutional dimension, as the defect strikes at defendant's due process rights. The impact of violating defendant's rights to procedural due process cannot be measured by or weighed against the quantum of evidence bearing upon defendant's guilt. State v. Frost, 158 N.J. 76, 87 (1999) (citing State v. Simon, 79 N.J. 191, 206 (1979)); see also Lisa, supra, 391 N.J. Super. at 581. "Even if the evidence were overwhelming, that could never be a justifiable basis for depriving a defendant of his or her entitlement to a constitutionally guaranteed right of [due process]." Frost, supra, 158 N.J. at 87.

Accordingly, we conclude the State's failure to correct the deficient ticket within thirty days of the date of the offense warranted dismissal of the charge.


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