January 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREJ WISNISKI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-17-10-Y15.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012 - Decided Before Judges A. A. Rodriguez and Fasciale.
Defendant appeals from his de novo conviction for refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. The main question is whether he was informed of the consequences of his refusal. Defendant, who speaks Polish and English, contends that he was not informed because a police officer communicated with him only in English. We affirm.
Officer John O'Neil responded to the scene of a one-car accident and observed defendant standing near his damaged vehicle. The office approached defendant, noticed that his eyes were bloodshot and his face was "very flushed," and detected a strong odor of alcohol emanating from his breath. After speaking to defendant in English and observing the scene of the accident, the officer determined that a truck approached defendant from the opposite direction in which defendant was traveling and forced defendant's vehicle to strike a telephone pole. Defendant complained to the officer that his chest hurt and he was then transported to the hospital. As a result, field sobriety tests were not performed.
At the hospital, medical personnel suspected that defendant had been drinking and, along with the officer, requested his permission to conduct a blood test. Defendant refused the blood test and medical treatment, stated that he was no longer injured, and signed himself out of the hospital. The officer then advised defendant that he would transport him to headquarters to administer an Alcotest.
They arrived at the police station within a couple of hours of the accident. Officer O'Neil read the contents of a document entitled the Division of Motor Vehicles Standard Statement for Operations of a Motor Vehicle (standard statement). Defendant listened to the standard statement in English, answered "no" to the questions regarding the Alcotest, and then refused to submit to a breathalyzer test. The police then charged him with the offense.*fn1
The matter was tried in the municipal court before Judge John Edward Palmer, III. Officer O'Neil testified for the state and Judge Palmer found that the officer's testimony was credible. In denying defendant's motion to dismiss the refusal charge, Judge Palmer stated:
I'm not convinced that there was any language barrier whatsoever. I believe that the defendant spoke and understood English . completely and he, in fact, never indicated there was any problem with understanding . . . the questions that were asked by the officer.
Defendant then testified with the use of a Polish interpreter. Judge palmer found that defendant has been in the United States for eighteen years, operates his own business, and "dealt with English speaking people on a regular basis[.]" He also found that defendant was "not believable."
Judge Palmer rendered an oral opinion and found defendant guilty of refusal to submit to the breathalyzer test.*fn2 In finding that defendant knowingly and voluntarily refused the breathalyzer test, Judge Palmer stated that:
At no time did the defendant indicate that he did not understand the police officer, nor did he . . . indicate that he didn't understand the [s]tandard [s]tatement that was read to him.
The judge treated the refusal conviction as a second offense, sentenced defendant to a two-year loss of license, and imposed the appropriate fines and penalties. Defendant appealed to the Law Division and Judge Palmer stayed the sentence.
Judge John J. Coyle, Jr., conducted a trial de novo in the Law Division and issued an eight-page written opinion. Defendant contended that he did not understand the consequences of his decision to refuse the breathalyzer test because the standard statement was read to him in English. After giving due deference to the credibility findings made by Judge Palmer, Judge Coyle stated that:
Defendant does, in fact, speak English well enough to have conversed in English with the arresting officer at the scene of the accident, in the hospital, and at police headquarters. More importantly, while being read the thirteen (13) paragraph [s]tandard [s]tatement, the [d]efendant responded "no" after paragraph 11 and paragraph 13, indicating his refusal to submit to a breath test. Defendant . . . indicated, in English, his refusal to submit to a blood test at [the hospital]. The record indicates that the [d]efendant responded to cross-examination questions in English at trial and that he testified he could converse with English-speaking employers.
Defendant . . . clearly speaks and understands the English language well enough to have conversed with law enforcement and to indicate his refusal to submit to a breath test. From the outset of his encounter with the [d]efendant, [the officer] had no reason to believe the [d]efendant did not understand the English language and at no point did the [d]efendant indicate that he did not understand the language contained in the [s]tandard [s]tatement.
Judge Doyle then found defendant guilty of the refusal charge, lifted the stay, and imposed the same sentence issued by Judge Palmer. This appeal followed.
On appeal, defendant raises the following points:
POINT I THE CONVICTION FOR REFUSAL PURSUANT TO [N.J.S.A.] 39:4-50.2 MUST BE REVERSED - THE READING OF THE STANDARD STATEMENT IN ENGLISH TO THIS DEFENDANT WHO DOES NOT UNDERSTAND FAILED TO "INFORM" HIM OF THE CONSEQUENCES OF REFUSAL AS REQUIRED BY LAW
THE CREDIBILITY DETERMINATION OF THE TRIAL JUDGE THAT THE DEFENDANT UNDERSTOOD SOME ENGLISH DOES NOT AFFECT THE STATE'S REQUIREMENT THAT THE STATE WAS REQUIRED TO "INFORM" HIM OF THE CONSEQUENCES OF REFUSAL
In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8(a). See, e.g., State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); see also Adubato, supra, 420 N.J. Super. at 176. In our review, we must likewise give deference to the findings of the trial judge who was influenced by his opportunity to hear and see the witnesses. Johnson, supra, 42 N.J. at 161. We then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law is de novo. Id. at 158-59.
After considering the record and briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Doyle in his thorough March 4, 2011 written opinion. We add the following brief comments.
Our Supreme Court enunciated that the following four elements must be satisfied to sustain a refusal conviction:
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test. [State v. Marquez, 202 N.J. 485, 503 (2010).]
Here, defendant's appeal focuses on the third element, that an officer inform defendant of the consequences of refusing to submit to a breathalyzer. "[T]o 'inform' . . . is to convey information in a language the person speaks or understands." Id. at 509. "Defendants who claim that they do not speak or understand English must bear the burden of production and persuasion on that issue." Id. at 514. Defendant failed to meet his burden.
Given our standard of review, we are satisfied that the record contains sufficient credible evidence that defendant is guilty of refusal beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162.