On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 41-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Defendant, Sherri Cairns, appeals from her conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, following her arrest for driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal, defendant argues she was not informed of the consequences of refusing and thus cannot be convicted because, although she speaks English, an old neurological injury prevented her from understanding the New Jersey Motor Vehicle Commission Standard Statement For Operators of a Motor Vehicle (standard statement) as read. She additionally claims that because of her disability, she was entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12101 to -12213. We affirm.
The evidence presented at trial revealed that on March 27, 2010, at approximately 1:00 a.m., Officer James Jones was "running a radar" in a twenty-five m.p.h. zone on Evergreen Avenue in Woodbury. Defendant was traveling along that roadway at twenty-nine m.p.h. Officer Jones pulled defendant over, advised her why she was stopped, and requested her driver's license, registration and insurance card. While he was speaking with her, he detected an odor of alcohol coming from the vehicle. Based on this observation, Officer Jones administered certain field sobriety tests, which defendant was unable to perform. Defendant informed Officer Jones that due to a neurological injury, she would be unable to perform the balance tests, but was otherwise cooperative.
Defendant was arrested and transported to the Woodbury Police Station. At the station, Officer Jones administered Miranda*fn1 warnings to defendant, and she signed and initialed a form acknowledging that she understood the rights as read. Officer Jones then read, verbatim, the standard statement to defendant. The standard statement consists of eleven paragraphs and also includes instructions to the officer for reading an additional paragraph if the person remains silent or if the response is ambiguous or conditional. After reading the first eleven paragraphs to defendant, she told Officer Jones: "'I don't understand what you read.'" At that point, Officer Jones "explained it to her that, you know, she was being given an option to perform a [b]reathalyzer test and what would happen if she didn't give a sample of her breath." Officer Jones testified that he actually explained it a couple of times, in layman's terms, "advising her what [would] happen if, you know, she didn't."
In response, defendant asked the officer "if [he] could release her and also made a statement that [he] was ruining her life by placing her under arrest." Officer Jones then read, verbatim, the additional statement:
I previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
Once again, I ask you, will you submit to giving samples of your breath?
After the additional statement was read to defendant, she once again expressed to Officer Jones that she did not understand, but also asked the officer: "'What will happen if I refuse?'" Officer Jones testified that he "explained it again[,] what would happen" because he was uncertain whether defendant was not understanding because she was "upset or she was just nervous or what the problem was[,]" which was why he "felt like [he] had to keep explaining everything to her, just so she would understand what was going on."
Officer Jones also testified defendant advised him that she had previously been injured in an accident that left her neurologically impaired and, as a result, she had difficulty with balance. She did not, however, indicate to him that the accident affected her ability to think or her ability to hear.
When defendant still did not comply, he charged her with the refusal offense and also speeding, N.J.S.A. 39:4-98, and driving while intoxicated (DWI), N.J.S.A. 39:4-50.*fn2
Defendant testified that in 1978, she was in a car accident, as a result of which she suffered brain damage and had to relearn basic skills such as walking and talking. She was nonetheless able to attend college and earned her Associate's degree and Bachelor of Science degree in elementary education. She admitted drinking a glass of wine at a friend's house before driving home on the night of her arrest. She testified that at the police station, she was "very verbal" and "was just telling [Officer Jones], you know, who I was and where I was from and that I have a teaching degree and that I worked in Woodbury and, you know, why don't you let me go or whatever[.]" Defendant acknowledged that Officer Jones read the standard statement but testified that after she said "I'm not really sure of everything that you read[,]" he did not read the additional statement but instead immediately wrote her down for refusal. She also testified that she did not see the Alcotest machine in the room in which she was seated and was never asked to blow into the machine.
Defendant presented expert testimony from Gary R. Beaufait, Psy.D., a clinical and neuropsychologist. He testified defendant was referred to his clinic for a neuropsychological evaluation by the New Jersey Department of Vocational Rehabilitation and he administered neuropsychological tests to assess her neuropsychological and cognitive functioning. The test results revealed that defendant's visual skills were her relative strength, while she had "relative weaknesses in her verbal abilities, her verbal processing skills, her verbal memory[,]" and that her "handling [of] verbal material was not as strong." During testing, she also displayed emotionalism, which he opined was "not uncommon with individuals who have had [defendant's] background." He expressed that based upon the history given to him by defendant and the testing he performed, "it's reasonable and likely that she would have problems processing and understanding . . . all the material that was read to her."
Under cross-examination, however, Dr. Beaufait agreed that much of his opinion was couched in terms of likely possibility, and when asked to assume that when Officer Jones read the additional statement, defendant asked, "'[w]hat will happen to me if I refuse[,]'" whether defendant's ...