On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. 2006-053.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
THE IMPLIED CONSENT STATUTE DOES NOT PROVIDE A PENALTY FOR REFUSAL TO SUBMIT TO A BLOOD TEST.
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 ...