On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-15-08.
The opinion of the court was delivered by: Espinosa, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant appeals from his conviction for refusal to submit breath samples, N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a, following his arrest for driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal, he argues that the State cannot convict a defendant of refusing to submit breath samples if the proofs fail to establish beyond a reasonable doubt that he understood the standard statement read to him pursuant to N.J.S.A. 39:4-50.2(e) (the standard statement). We affirm.
On January 29, 2007, Officer Robert Pizzi of the Northvale Police Department was on patrol when he observed defendant's vehicle pull into the loading dock area of a company, Alliance Foods, at approximately 8:30 p.m. Defendant left his car and walked to a grassy area between Alliance Foods and the Bloomfield Diner. Officer Pizzi passed defendant's vehicle in his patrol car and saw defendant standing by a tree, facing the diner, his legs spread apart. Officer Pizzi pulled into the loading dock area and placed his vehicle behind defendant's car, which was running with the driver's door ajar. Officer Pizzi called out to defendant, who was walking away and appeared to be adjusting his pants. Defendant turned and began to walk unsteadily toward Officer Pizzi.
Officer Pizzi asked defendant why he was urinating in that area. Defendant looked down, "sort of chuckled," and stated that he was sorry. Officer Pizzi detected an odor of alcoholic beverage on defendant's breath and asked him if he had been drinking that evening. Defendant replied that he had been drinking at a friend's house in Norwood. Upon request, he produced his license, registration and insurance card.
Officer Pizzi asked defendant if he could run through some field sobriety tests and defendant agreed. The first test was the heel-to-toe test. Officer Pizzi asked defendant to stand heel-to-toe with his arms by his side while he demonstrated the test. Defendant was unable to maintain that position during Officer Pizzi's demonstration. Officer Pizzi asked defendant if he understood the instructions and he stated that he did. Defendant was unable to connect heel-to-toe on several occasions and, despite raising his arms for balance, stepped off the line.
Next, Officer Pizzi asked defendant to perform the one-leg-stand test, which he explained and demonstrated. He asked defendant if he understood the instructions and defendant replied that he did. As he performed the test, defendant once again used his arms to stabilize himself but was repeatedly unable to keep his foot raised as instructed. Officer Pizzi stated that "his foot was down more often than it was up."
Officer Pizzi testified regarding the third field sobriety test as follows:
A: I attempted to perform the nystagmus gaze test, otherwise known as the HGN, . . . . However, at that point, the language barrier was - difficult, and I was unable to perform that test to completion.
Q: Please describe what you mean by the language barrier was now difficult?
A: I  asked Mr. Kim to keep his head still and follow the tip of my stimulus with - with his eyes only, and he was unable to do that.
Officer Pizzi arrested defendant for DWI, advised him of his Miranda*fn1 rights and placed him in the patrol car to take him to police headquarters.
A videotape was taken of the pertinent proceedings at police headquarters. Officer Pizzi read the Miranda warnings and the standard statement required by N.J.S.A. 39:4-50.2(e), including the supplemental instruction to be given when a defendant fails to consent to giving a breath sample. On each of the two occasions when defendant was asked if he would submit ...