On certification to the Superior Court, Appellate Division, whose opinion is reported at 395 N.J. Super. 337 (2007).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Defendant Ernest Spell was convicted in municipal court of refusing to submit to a Breathalyzer(r) test, in violation of N.J.S.A. 39:4-50.2. At a trial de novo before the Superior Court, Law Division, defendant was convicted anew.
The Appellate Division affirmed the conviction. State v. Spell, 395 N.J. Super. 337 (2007). The panel also held that whenever a person detained for driving while intoxicated refuses to take a Breathalyzer(r) test immediately upon request, police officers must read the additional, final paragraph of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle -- N.J.S.A. 39:4-50.2(e).
The Supreme Court granted the State's petition for certification and denied defendant's cross-petition for certification. 194 N.J. 269 (2008).
HELD: The Court affirms defendant's conviction substantially for the reasons expressed by the Appellate Division. The Court vacates that part of the Appellate Division's holding that requires police officers to read the final, additional paragraph of the standard statement whenever a defendant refuses to provide a breath sample immediately upon request.
1. The record supports the finding that defendant unequivocally refused to take the Breathalyzer(r) test. (p. 2)
2. The additional paragraph of the standard statement to which the Appellate Division referred is, according to its instructions, to be read aloud by police officers only if, after all other required warnings have been provided, a person detained for driving while intoxicated either conditionally consents orambiguously declines to provide a breath sample. That paragraph reiterates some of the prior warnings, including that the person's right to remain silent and right to counsel do not apply to the taking of breath samples and do not give the person the right to refuse to provide them; and that if the person does not unconditionally agree to provide breath samples, the person will be charged with refusal to submit to the test. That paragraph concludes by again asking if the person will submit to giving breath samples. The Appellate Division's holding that requires police officers to read that paragraph in all cases was not necessary to the determination of this case. To that extent, it is vacated. (pp. 2-3)
3. The Legislature has vested in the Chief Administrator of the Motor Vehicle Commission the authority to determine the contents and procedure to be followed in respect of the standard statement. The Court refers the procedure outlined by the Appellate Division to the Chief Administrator for consideration. (p. 4)
4. Because the decision to amend the standard statement is vested in the sound discretion of the Chief Administrator, the Court does not retain jurisdiction over that aspect of the judgment. (pp. 4-5)
The judgment of the Appellate Division is AFFIRMED, as MODIFIED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERASOTO and HOENS join in this opinion.