On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 074-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
Following a trial in the Morris Township Municipal Court, defendant Sandra M. Correia was convicted of refusing to submit to a blood alcohol content (breathalyzer) test, N.J.S.A. 39:4- 50.2. She appealed and was convicted of the same offense following a trial de novo in the Law Division. The Law Division judge imposed a $500 fine; $33 court costs; $100 DDEF penalty; and a seven-month driver's license suspension. The judge denied defendant's motion for a stay of the license suspension. Defendant then filed an emergent application with us, seeking a stay of the license suspension. We granted the stay pending appeal. State v. Correia, No. M-5592-08 (App. Div. May 8, 2009).
These are the salient facts. Morris Township Patrolman Marc Costa testified that he was on duty the evening of November 23, 2006. On the northbound lane of Whippany Road, he observed a Lexus stopped in the intersection of Whippany Road and Woodruff Road. Costa pulled behind the Lexus, activated his overhead lights and approached the driver. Costa saw defendant slumped over in her seat. He knocked on the Lexus's closed window. Defendant lowered the window. As she did so, Costa detected an odor of alcohol emanating from defendant and the inside of the Lexus. Costa asked defendant if she was "okay." She responded that she was lost. Costa noted that defendant's speech was slurred and her facial features were flushed and droopy. He also noticed that her eyes were half-closed, bloodshot and watery. Costa questioned defendant about alcohol consumption. She told him she consumed some alcohol.
Costa asked defendant to step out of the Lexus. Defendant complied. However, before defendant exited the Lexus, Costa had to remind her to first place the Lexus in park because it was in drive.
Defendant exited the Lexus and followed Costa towards the rear of the vehicle. Costa observed that she was leaning against her vehicle as she walked. Defendant attempted the one-legged stand a few times. However, she failed because she would immediately place her foot back on the ground after lifting it. Defendant attempted to perform the heel-to-toe test. She lost her balance and almost fell over. Costa concluded that defendant was intoxicated. He placed her under arrest for driving while intoxicated. Defendant started to cry.
Defendant was placed in the patrol vehicle. On the way to headquarters, defendant began to sob heavily. At headquarters, defendant continued to cry. About five minutes after arriving there, Costa saw defendant starting to experience an asthma attack. Defendant requested her inhaler. Patrolman Sean O'Hare retrieved defendant's inhaler from her pocketbook and gave it to her. However, defendant was unable to properly use the inhaler. O'Hare placed the inhaler in defendant's mouth and pressed the device for her. O'Hare attempted to administer oxygen to defendant. However, defendant kept pushing the oxygen away. O'Hare again tried to give defendant her inhaler. Defendant refused to take it. An ambulance took defendant to Morristown Memorial Hospital.
At the hospital, defendant was treated and cleared within a short period of time. Costa asked the nursing staff to take defendant's blood if she consented. Defendant consented and signed a consent form. However, the nursing staff determined defendant's veins were too small. Thus, they were unable to draw a sample of defendant's blood.
Based on this information, Costa read defendant her statutory instructions and advised her that if she consented to an alcohol test, she would be transported back to headquarters for that purpose. Defendant did not give an answer. Costa read the statutory instructions to defendant "quite a few times." Defendant did not respond. Costa then read the additional instructions to defendant advising her that if she did not comply or did not consent, she would be charged with refusal. This instruction was also explained to defendant. Defendant did not respond. She was charged with refusal.
On appeal, defendant contends that her "written consent requires acquittal on refusal charge." Specifically, she alleges that she never refused to submit to the test. In fact, she signed a written consent to take a blood test at Morristown Memorial Hospital. We disagree.
Here, a blood test could not be taken. This was patently obvious to defendant. Therefore, her consent to a blood test, which would have been sufficient if the test had taken place, was ineffective to defeat the refusal charge. The police officer repeatedly asked defendant for permission to take a breathalyzer test after blood could not be drawn. It is undisputed that by defendant's silence, she refused.
Therefore, it is clear that defendant violated N.J.S.A. 39:4-50.2. The elements of a violation for refusing to submit to a breath test are: (1) that an arresting officer has probable cause to believe that the accused operated a vehicle while under the influence of alcohol; (2) an arrest of the accused for driving while under the influence of alcohol; and (3) the accused's refusal to submit to a breathalyzer test. State v. Wright, 107 ...