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State of New Jersey v. Gerald E. Nunnally

May 4, 2011


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-06-10.

The opinion of the court was delivered by: Reisner, J.A.D.



Submitted January 31, 2011

Before Judges Lisa, Reisner and Sabatino.

The opinion of the court was delivered by REISNER, J.A.D.

While driving a commercial vehicle, defendant Gerald E. Nunnally was arrested for a suspected violation of N.J.S.A. 39:3-10.13 (prohibiting operation of a commercial motor vehicle by a driver "with an alcohol concentration of 0.04% or more.").*fn1

After defendant refused to submit to an Alcotest, the arresting officer also charged him with violating the general refusal statute, N.J.S.A. 39:4-50.4a,*fn2 instead of the statute pertaining to refusal by a person driving a commercial vehicle, N.J.S.A. 39:3-10.24 (CDL refusal statute). The Law Division dismissed the refusal charge, agreeing with the municipal judge that the State could not prosecute defendant under the general refusal statute in these circumstances and the State could not amend the complaint to charge defendant with CDL refusal, on the day of trial and after the ninety-day statute of limitations had run. The State appealed.

Because CDL refusal is not a lesser included offense of general refusal, we agree that the State was precluded from amending the complaint to charge CDL refusal after the statute of limitations expired. We also hold that the driver of a commercial vehicle who is arrested and charged only with CDL DUI, N.J.S.A. 39:3-10.13, and who thereafter refuses a breath test, may only be charged under the cognate CDL refusal statute, N.J.S.A. 39:3-10.24, and may not be prosecuted under the general refusal statute, N.J.S.A. 39:4-50.4a. Therefore, we affirm the decision of the Law Division.

For future guidance, we note that a commercial vehicle driver whose conduct violates both the general and CDL DUI statutes may be arrested and charged under both statutes. If the driver then refuses a breath test after being advised of the consequences of refusal pertaining to both statutes, the driver may also be charged under both refusal statutes.*fn3 Finally, if law enforcement perceives potential difficulties in enforcing the CDL DUI statute, because it prohibits driving with a BAC of .04% or higher but does not specifically prohibit "driving under the influence of intoxicating liquor," those concerns should be directed to the Legislature.


We briefly summarize the parties' factual allegations to place our legal conclusions in context. The State contended that on December 19, 2009, a group of school children flagged down a Glen Rock police car and reported that a Department of Public Works (DPW) plow truck*fn4 had just hit two traffic signs and driven away. After following the truck to the DPW yard, a police officer observed that defendant, the driver, had bloodshot watery eyes and slurred speech, smelled of alcohol, and could not walk or stand without assistance. According to the initial police report, defendant admitted that he had been drinking. When defendant repeatedly failed to blow properly into the Alcotest machine, after being read the warnings pertaining to CDL refusal, he was cited for refusal to take a breath test under the general refusal statute, N.J.S.A. 39:4-50.4a.

Defendant denies that he was intoxicated, contending that his condition was attributable to several serious health problems that caused his blood sugar to become "dangerously low."


On this appeal, the State raises three arguments. First, it contends that the proposed amendment was solely to correct a "technical defect" in the complaint and was therefore permissible under Rule 7:2-5. Second, the State argues that under Rule 7:14-2, the amendment should have been permitted because "a CDL refusal is the same substantive offense or a lesser included offense of a general refusal." Finally, the State asserts that it can prosecute defendant for violating the general refusal statute, which was cited in the complaint. We begin by addressing the State's arguments based on the Rules.

A complaint for refusing a breath test must be made within ninety days after the commission of the offense. N.J.S.A. 39:5-3(b). This provision operates as a statute of limitations in that it bars prosecution unless the complaint is made within the time limit. State v. Wallace, 201 N.J. Super. 608, 611 (1985). There is no dispute that, well within the time limit, defendant was issued a Uniform Traffic Ticket, which served as a combined complaint and summons. See R. 7:2-1(f); State v. Fisher, 180 N.J. 462, 464 (2004). "[O]nce service of process occurs within the mandated time, i.e., 'timely notice of the allegations charged' is received by the defendant, formal errors or omissions may be corrected within a reasonable time." State v. Buczkowski, 395 N.J. Super. 40, 43-44 (App. Div. 2007) (citations omitted).

The State contends that citing the wrong refusal statute was a technical defect that could be cured by amendment under Rule 7:2-5. This rule provides that "[n]o person . . . appearing in response to a summons shall be . . . dismissed because of any technical insufficiency or irregularity in the . . . summons, but the . . . summons may be amended to remedy any such technical defect." Ibid. In the alternative, the State relies on Rule 7:14-2, which permits the municipal court to "amend any process or pleading for any omission or defect." However, "no such amendment shall be permitted which charges a different substantive offense, other than a lesser included offense." Ibid.

Construing the two rules in pari materia, we conclude that a failure to cite the correct substantive offense is not a "technical defect" subject to amendment under Rule 7:2-5. Otherwise, there would be no need for the specific restriction in Rule 7:14-2 against amending a complaint to charge a different substantive offense other than a lesser included offense. Further, allowing an amendment to cite a different offense is fundamentally different than amending to correct a minor defect, such as the lack of a signature or naming the wrong jurisdiction in which the offense occurred.

"Our court rules are designed to ensure that traffic offenses are decided on the merits rather than dismissed on technicalities." State v. Fisher, supra, 180 N.J. at 469. However, "[l]ike a criminal indictment," the "primary purpose" of a traffic ticket is "'to inform a defendant of the charges he must defend against'" and to "'ensure protection from being subsequently placed in jeopardy for the same offense.'" Id. at 468, ...

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