On certification to the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Justice Rivera-soto
(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).
State of New Jersey v. Aaron P. Schmidt (A-35-10)
Argued March 28, 2011 -- Decided May 26, 2011
RIVERA-SOTO, J., writing for the Court.
The question before the Court is whether a defendant's failure to provide proper breath samples -- of sufficient volume and length -- during the administration of a breath-based blood alcohol test, constituted an "ambiguous or conditional" response sufficient to require the reading of a second statement in addition to the Standard Statement under N.J.S.A. 39:4-50.2(e).
On November 29, 2007, Sergeant Morgan of the Woolwich Township Police Department observed defendant at the wheel of his vehicle, approaching in the opposite direction; defendant was swerving, alternately crossing over the shoulder line into the shoulder and then weaving to cross over the dividing double-yellow lines between the east and westbound traffic lanes. Upon stopping the vehicle, Morgan "could smell a strong odor of an alcoholic beverage coming from [defendant's] breath. [Defendant] appeared to be intoxicated and impaired, as his speech was slow and slurred and his eyes were bloodshot." Defendant stated he could not perform the field sobriety tests because of a physical handicap. After several failed attempts, defendant was arrested and transported to headquarters.
At police headquarters, defendant was read his Miranda warnings and "the standard statement for operators of a motor vehicle." The Standard Statement explains, among other things, that the law requires that the defendant provide the required breath samples and that if he refuses, he will be issued a separate summons for the refusal. The statement further provides that any ambiguous or conditional response also will be treated as a refusal. In addition, the statement provides that, if a defendant "remains silent; or states, or otherwise indicates, that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person; or if the response is ambiguous or conditional, in any respect whatsoever," the police officer administering the test shall read an additional statement.
After defendant consented to provide the required breath samples -- thereby obviating the need to read the Additional Statement -- Patrolman Carson of the Logan Township Police Department "instructed [defendant] to take a deep breath and blow into the mouth piece with one long continuous breath. [Defendant] was advised to continue to blow until he was told to stop. He advised he understood." Twice defendant provided breath samples that were not of sufficient length and/or volume to generate a valid reading on the testing apparatus. Carson again instructed defendant and advised him that if he "did not give a long continuous breath [, it] would be considered a refusal." When defendant again failed to do that, he was charged with refusal to give a breath sample, in violation of N.J.S.A. 39:4-50.2.
In the municipal court, defendant consented to be tried on a stipulated record consisting exclusively of the police report and the text of the entire Standard Statement. He nonetheless challenged the refusal charge, claiming that once the police officer had determined to "charge [defendant] with the refusal . . . he was required to read the [Additional Statement]." The municipal court rejected that claim, stating that from "the plain reading of the refusal paragraphs [in the Standard Statement], it doesn't call for the reading of the [Additional Statement]." Ultimately, the municipal court stayed defendant's sentence pending appeal.
Defendant filed a de novo appeal to the Law Division where he advanced a two-fold argument: "One, whether [defendant's] actions were a refusal; and Two, whether, even if they were, if his actions did constitute a refusal, whether the State could prove it based on the fact they didn't read [the Additional Statement]." The Law Division rejected those arguments. The court explained that it did not find defendant's answer "to be ambiguous or conditional" and that, as a result, the State was not required to read the Additional Statement. The Law Division concluded that "defendant did knowingly refuse to provide a proper sample and that this has been established beyond a reasonable doubt." Adjudging defendant guilty of refusal under N.J.S.A. 39:4-50.2, the Law Division imposed the same sentence as had the municipal court.
Defendant again appealed, and the Appellate Division reversed. The panel determined that defendant "unambiguously consented to undergo an Alcotest after being read the first part of the Standard Statement." The panel determined, however, that the "ambiguous circumstances" required reading of the Additional Statement and that "[s]o long as the [Additional] Statement is read and the defendant, without reasonable excuse, continues to produce inadequate breath samples, we find it to be within a police officer's discretion to terminate the [breath test] and charge the defendant with refusal." The Appellate Division therefore reversed defendant's conviction and sentence for refusing to submit to the breath test.
The Supreme Court granted the State's petition for certification. The Association of Criminal Defense Lawyers of New Jersey was granted leave to file a brief as amicus curiae.
HELD: Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, defendant remained among those who have consented and, hence, was not entitled to reading of the Additional Statement.
1. Central to the inquiry in this appeal are the dual questions of what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie. Save for penalties that may be imposed under N.J.S.A. 39:4-50.4a, the substance of the standard statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch. Once the question of what must be disclosed in the Standard Statement is laid to rest, the corollary question of how much must be disclosed seems self-evident: provided the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied. At this Court's behest, the Executive Branch added the Additional Statement at issue in this appeal, but limited its application solely to those certain delineated instances, including where a defendant's response is "ambiguous or conditional." Here, the Appellate Division concluded that defendant's thrice failed attempts to provide a sufficient breath sample rendered his earlier unambiguous and unconditional assent to submit to the breath test somehow ambiguous or conditional, thereby triggering the obligation to read the Additional Statement. Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, the Court is compelled to reject the Appellate Division's extension of the Additional Statement as unwarranted. Once consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant's unilateral actions aimed at defeating the testing process. To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme. (Pp. 15-24)
2. No due process notice considerations have been raised by the parties to this appeal in respect of defendant's failure to submit to the test and, hence, the Court need not address that question. That said, for the avoidance of future doubt and to provide consistency of administration, the inclusion in the main body of the Standard Statement of a notice to a DWI arrestee that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test is both reasonable and salutary. Therefore, the Court recommends to the Attorney General that the main text of the Standard Statement be supplemented to address such instances. (Pp. 24-26)
The judgment of the Appellate Division is REVERSED, the stay of defendant's sentence is VACATED, defendant's conviction and sentence are REINSTATED, and the case is REMANDED to the Law Division to implement defendant's sentence without additional delay.
JUDGE STERN (temporarily assigned) filed a separate, CONCURRING opinion, in which JUSTICES LONG and ALBIN join, stating that even when defendant unequivocally and unconditionally consented to give an adequate breath sample at the outset, once his efforts proved to be insufficient, he had to be further advised about his obligation to provide an adequate sample and the consequences of not doing so.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, and HOENS join in JUSTICE RIVERASOTO's opinion. JUDGE STERN, temporarily assigned, filed a separate concurring opinion, in which
JUSTICES LONG and ALBIN join.
JUSTICE RIVERA-SOTO delivered the opinion of the Court.
Arrested as a repeat offender for driving while intoxicated, defendant Aaron P. Schmidt was read the standard warnings that must be provided before the administration of a breath-based blood alcohol test. Defendant consented to the administration of the breath test. Although defendant was instructed that, in order to produce valid results, he needed to provide a long, continuous breath, he twice failed to do so. The police then advised defendant that his failure to provide the required volume and length of breath would be considered a refusal to take the test. For the third consecutive time, defendant failed to do as instructed and, as he was warned, he was charged with refusal to provide "samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood[,]" in violation of N.J.S.A. 39:4-50.2(a).
Defendant was tried on a stipulated record consisting exclusively of the police report and the statement originally generated by the Motor Vehicle Commission that was read to defendant by the police. He argued that, despite his agreement to provide the required breath samples, his failure to provide the required length and volume of breath necessary for a valid reading was the functional equivalent of an initial refusal, which should have triggered the police's obligation to read to defendant an additional statement. Rejecting that argument, the municipal court found defendant guilty of refusal and imposed a sentence that it stayed pending defendant's appeal. At a trial de novo before the Law Division, defendant repeated his earlier argument; that effort too was unsuccessful. However, defendant's arguments found a more receptive audience before the Appellate Division, which concluded that "the instruction [contained in the additional statement] was required under the . . conditional or ambiguous circumstances of this case[,]" State v. Schmidt, 414 N.J. Super. 194, 203 (App. Div. 2010), and that the failure to meet that requirement mandated overturning defendant's conviction and sentence.
We disagree. Those who are required to provide a breath sample in
order to determine whether they have operated a motor vehicle while
under the influence of intoxicating liquor are statutorily entitled to
"[a] standard statement, prepared by the chief administrator [of the
Motor Vehicle Commission, which] shall be read by the police officer
to the person under arrest." N.J.S.A. 39:4-50.2(e).*fn1
That statement, prepared by the Executive Branch,
differentiates between those who consent to providing the required
breath sample and all others, and it requires that an additional
statement "be read aloud only if, after all other warnings have been
provided, a person detained for driving while intoxicated either
conditionally consents or ambiguously declines to provide a breath
sample." State v. Spell, 196 N.J. 537, 539 (2008). Because defendant
consented to provide the required sample of his breath yet, despite warnings,
failed to do so, he remained among those who have consented and,
hence, was not entitled to any additional readings.
In the early morning hours of November 29, 2007, Sergeant Morgan of the Woolwich Township Police Department observed defendant at the wheel of his vehicle, approaching in the opposite direction; defendant was swerving, alternately crossing over the shoulder line into the shoulder and then weaving to cross over the dividing double-yellow lines between the east-and westbound traffic lanes. Sgt. Morgan gave chase, and defendant stopped. While advising defendant of the reason he had been stopped and requesting that defendant produce his driver's license, vehicle registration and proof of insurance, Sgt. Morgan reported that he "immediately could smell a strong odor of an alcoholic beverage coming from [defendant's] breath. [Defendant] appeared to be intoxicated and impaired, as his speech was slow and slurred and his eyes were bloodshot." When asked where he had come from, defendant admitted that he was returning from a bar. The police asked defendant to undergo the standard field sobriety test. However, defendant replied that, because he had a physical handicap, he would be unable to perform that test. The police nevertheless asked that defendant try to complete it; he made some attempts but ultimately stated "he was not going to do the test." Defendant then "was advised he was under arrest, handcuffed, placed in the rear of [Sgt. Morgan's] patrol car, and transported to police headquarters." Sgt. Morgan noted that, "[w]hile en[ ]route to headquarters, my patrol car filled with a strong odor of an alcoholic beverage, as [defendant] begged me to cut him a break and let him go home."
At police headquarters, defendant was read his Miranda*fn2
warnings and "the standard statement for operators of a motor vehicle."*fn3 The Standard Statement explains why a defendant has been arrested; that the law requires that the defendant provide the required breath samples; that a record of the taking of samples will be made and a copy provided to the defendant upon request; that the Miranda warnings earlier provided do not apply to the taking of breath samples and that the defendant has no right to have anyone else present during the procedure; that the defendant has the right, at his own expense, to perform independent testing of the samples; that if the defendant refuses to provide the samples, he will be issued a separate summons for the refusal; that any ambiguous or conditional response also will be treated as a refusal; that certain minimum penalties apply for refusal; and that, again, defendant is required by law to provide the required samples.
The Standard Statement further provides that, if a defendant "remains silent; or states, or otherwise indicates, that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person; or if the response is ambiguous or conditional, in any respect whatsoever," ...