June 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHERRI CAIRNS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2012
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 response was indicative of "some type of understanding" on defendant's part, Dr.
Beaufait responded, "Yes." When asked whether he would reach the same conclusion if defendant had also asked the officer, "'[w]hy are you ruining my life[,]'" Dr. Beaufait was not sure what impact that statement, if true, would have upon his opinion because he was just hearing about it for the first time.
Defendant also produced her father, Harry Cairns, as a witness. He testified about the course of defendant's recovery after her accident some thirty years earlier and his observations of defendant during the three years leading up to the underlying arrest.
On December 8, 2010, Judge William Golden orally placed his opinion on the record, finding defendant guilty of the charge. The judge found defendant's claimed inability to understand what was read to her by Officer Jones belied by other facts:
Quite frankly . . . what she went through in her life [thirty-three] years ago . . . certainly, none of us would want to go through or have any of our children or friends or relatives go through.
But after the accident, she got a college degree[,] an Associate's [d]egree, a Bachelor's [d]egree[,] [w]as certified in Special Ed[ucation,] [g]ot married, is raising children, taught full-time for a year and is teaching part-time now.
[She] [h]andles a checkbook, handles her family, handles driving, handles household chores[,] and a woman that intelligent, I have to believe that she had no clue as to what was going on that night.
Clearly, I don't find that to be the case and I think her statements to the officer that you can let me go, you're ruining my life, why don't you just release me, what will happen if I refuse, clearly shows on her part she knew this.
The judge also concluded State v. Marquez, 202 N.J. 485 (2010), proffered by defendant to support her contention she should not have been convicted of the offense because her brain injury prevented her from understanding the standard statement, was inapplicable. The court reasoned that Marquez, supra, did not apply because the case dealt with a claimed lack of understanding of the standard statement language by a suspected drunk driver who did not speak English rather than a claimed disability based upon a neurological impairment, which claim the judge obviously rejected in finding that defendant was "aware enough to say[:] 'Why don't you let me go? You can cut me a break. Don't ruin my life. What happens if I refuse the test?'"
Next, Judge Golden specifically addressed his credibility determination related to defendant's contention that Officer Jones did not read the additional statement to her:
Now, there was a factual issue in this case. Ms. Cairns didn't remember him reading the second part of the statement but clearly Ms. Cairns wants me to believe[,] on the left hand[,] that she was so confused and dazed and out of it that she didn't understand what the officer was reading.
And on the other hand, say I have such a clear and vivid recollection that I specifically recall he didn't read that second part of the statement. I don't find that to be a credible position on behalf of . . . [d]efendant.
I find that the officer's testimony was clear and[,] as I said, in fact, he went above and beyond what the law requires him to do and explained it to her in layman's language.
On appeal de novo, the Law Division judge made independent findings of fact and conclusions of law based on the record and found the State proved the refusal charge beyond a reasonable doubt. The judge gave deference to the municipal judge's credibility determinations and stated that Officer Jones did "what he was required to do. He read the statement in full." She too noted, as did Judge Golden, that unlike Marquez, supra, defendant had obtained advanced degrees, maintained her lifestyle, raised her children, handled day-to-day activities, and served as a substitute teacher. The court imposed the requisite fines and penalties, as well as a seven-month revocation of defendant's driving privileges. The present appeal followed.
On appeal, defendant raises the following arguments for our consideration:
POINT I [THE] STATE DID NOT MEET ITS BURDEN TO INFORM.
DEFENDANT MET [HER] BURDEN OF PRODUCTION ON [THE] ISSUE OF WHETHER SHE COULD PROCESS LENGTHY COMPLICATED PASSAGES READ TO HER IN LIGHT OF RESIDUALS OF TRAUMATIC BRAIN INJURY.
DEFENDANT DID NOT REFUSE TO TAKE [THE]
BREATH TEST UPON REQUEST OF POLICE OFFICER.
IN A PROSECUTION ALLEGING VIOLATION OF N.J.S.A. 39:4-50.4A, THE POLICE MUST VIDEO RECORD ALL PROCEEDINGS FROM THE READING OF THE STANDARD STATEMENT TO THE ISSUANCE OF THE TICKET.
DEFENDANT, A PERSON WITH A DISABILITY, WAS NOT AFFORDED REASONABLE ACCOMMODATION.
THE COURTS BELOW ERRED IN REFUSING TO APPLY STATE V. MARQUEZ, 202 N.J. 485 (2010)[,] AND OTHER ERRORS BELOW.
The scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). Like the Law Division, we are not positioned to evaluate credibility in the same manner as the municipal judge; thus, we "do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Instead, we defer to the credibility findings of the trial court. State v. Locurto, 157 N.J. 463, 474 (1999); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). We do not, however, owe any special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). We have considered defendant's arguments in light of this standard of review and reject all of defendant's points.
Under the implied consent statute, N.J.S.A. 39:4-50.2(a), each motorist using the public roads in the State is deemed to have given consent to undergo a chemical test to determine blood alcohol levels at the request of a police officer who has reasonable grounds to believe that a motorist has been operating a motor vehicle while under the influence of alcohol. State v. Mulcahy, 107 N.J. 467, 474 (1987). A motorist who fails to submit to a breath test when requested to do so will be charged with refusal under N.J.S.A. 39:4-50.4a, triggering a mandatory suspension of the motorist's driving privileges.
A police officer's request to a motorist to submit to a breathalyzer is statutorily mandated. N.J.S.A. 39:4-50.2(e) provides:
No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with [N.J.S.A. 39:4-50.4a] . . . . A standard statement, prepared by the chief administrator shall be read by the police officer to the person under arrest.
The Legislature authorized the standard statement as a procedural device to inform motorists of "the mandatory nature of the [breath] test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." State v. Widmaier, 157 N.J. 475, 489 (1999).
In Marquez, supra, the Court held that a suspected drunk driver who did not speak English was not "informed" of the consequences of refusal when the police officer read the standard statement to the defendant in English. 202 N.J. at 514. Here, defendant seeks to analogize her situation to that of the defendant in Marquez, supra. We agree, as the municipal and Law Division judges concluded, Marquez, supra, is distinguishable, but not because the defendant there was non-English-speaking. Rather, the point being emphasized by Chief Justice Rabner in Marquez, supra, was that in adding the additional language to the refusal statute directing police to inform motorists of the consequences of refusing to take a breath test by reading the standard statement, the Legislature intended to ensure that information is conveyed to a motorist "in a language the person speaks or understands." Id. at 509. Had the municipal judge credited defendant's testimony and the opinion of her expert regarding her cognitive deficits, Marquez may have applied by analogy. The evidence defendant presented, however, was not credited, and there is substantial, credible evidence in the record to support the municipal judge's credibility determinations against defendant. Barone, supra, 147 N.J. at 615.
Specifically, Officer Jones orally advised defendant of her Miranda rights and defendant signed a form acknowledging that she understood her rights and was willing to make a statement and answer questions. She acknowledged that she was a college graduate, a teacher, and a parent raising her children. She also acknowledged understanding the verbal instructions from Officer Jones requesting that she recite the alphabet as well as his instructions directing her to raise one leg six inches off the ground. Additionally, when the prosecutor asked defendant whether she experienced difficulty understanding his questions or those posed by her attorney, she responded "[n]ot directly[,]" although pointing out to him, on occasion, she did ask that one or two questions from both lawyers be repeated. In light of this factual record, the municipal judge's credibility determination is entitled to our deference. Ibid.
Next, we find no reason to disturb defendant's conviction based upon Officer Jones advising defendant, in layman's terms, that she was "being given an option to perform a [b]reathalyzer test." While the word "option" may not have been the best word to explain the standard statement in layman's terms, Officer Jones made clear that defendant would be arrested and charged with refusal if she refused to take the test and reinforced this consequence when he thereafter read the additional statement verbatim. His layman's explanation was merely his effort to go beyond what Chief Justice Rabner characterized as a "rote recitation" of the language in the standard statement. Marquez, supra, 202 N.J. at 507. Given Judge Golden's conclusion that defendant understood the standard statement when it was read verbatim to her, the officer's use of the word "option" was not fatal to the State's proofs.
Defendant's contention that the proceedings at the station should have been videotaped are without merit. There is no reference to any decisional law, statute or regulation mandating videotaped DWI processing. It is not our task to find support for a theory advanced by defendant. Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 482 n.12 (App. Div. 2012).
As for her claim that she was not afforded reasonable accommodation under the ADA, this claim was not raised below. As such, we ordinarily decline to consider an issue not raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, we note while there are no reported decisions in New Jersey addressing the applicability of the ADA to DWI arrests, there are a number of reported decisions from other jurisdictions where the issue has been raised. See, e.g., Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1081 (11th Cir. 2007); Paulone v. City of Frederick, 787 F. Supp. 2d 360, 403-404 (D. Md. 2011); but see Rosen v. Montgomery Cnty., 121 F.3d 154 (4th Cir. Md. 1997). 42 U.S.C.A. § 12132 provides in pertinent part, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." To effectuate this statutory mandate, the Department of Justice regulations require that public entities "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7); Bircoll, supra, 480 F.3d 1072 at 1083 n.13. However, before a public entity can be required under the ADA to make reasonable modifications, the public entity "must have knowledge of the individual's disability and the individual's need for an accommodation." Robertson v. Las Animas County Sheriff's Dep't, 500 F.3d 1185, 1196 (10th Cir. Colo. 2007).
Here, it is clear that although defendant told Officer Jones, on several occasions throughout the arrest, that she had a neurological disorder, there is no evidence in the record that the officer was aware of defendant's need for an accommodation. A public entity is on notice that an individual needs an accommodation when that need is obvious or when the individual requests an accommodation. Robertson, supra, 500 F.3d 1185, 1196; Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385, 400 (App. Div. 2002) (holding, in the employment context, it is not necessary under the ADA that an employee's request for reasonable accommodation be in writing or use the term "reasonable accommodation," but the employee must "make clear" that assistance is desired for his or her disability). Here, defendant did not ask for an accommodation, based upon cognitive defects, that would enable her to understand the standard statement, nor was her need for accommodation on this basis obvious. Rather, the only accommodation she sought was for Officer Jones to simply let her go; in other words, cut her a break. As such, Officer Jones was not obligated to take additional steps to accommodate defendant.
Finally, we agree the Law Division judge misspoke. The municipal judge did not expressly state that he found Dr. Beaufait's testimony lacked credibility. The only reference to Dr. Beaufait's testimony in Judge Golden's decision was the judge's observation the prosecutor "made the point on cross-examination that a lot of . . . [the expert's] statement[s] were couched in the words of likely or very likely or possible[,]
[a]s opposed to statements beyond a reasonable degree -- or to a reasonable degree of scientific or medical certainty, which is normally the case." Because the court did not credit defendant's testimony that she did not understand the standard statement Officer Jones read to her, the Law Division judge's mistaken conclusion is of no consequence.
Affirmed. The stay is vacated.