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State of New Jersey v. Nicole Allan

September 12, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICOLE ALLAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-061.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 25, 2012 -

Before Judges Cuff and St. John.

Defendant Nicole Allan appeals from her conviction for refusal to submit to a chemical breath test. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

On appeal, the record discloses the following facts relevant to defendant's violation of the refusal statute, and procedural history.

Defendant was charged in Sea Bright with driving while intoxicated, N.J.S.A. 39:4-50 (DWI); refusal to submit a breath sample, N.J.S.A. 39:4-50.2 (refusal); and reckless driving, N.J.S.A. 39:4-96. Trial was held in the Sea Bright Municipal Court before Judge Thomas F.X. Foley. The State presented one witness, Patrolman Chris Fisler of the Sea Bright Police Department, and the defense offered no witnesses.

After defendant was arrested for DWI, Fisler brought defendant to police headquarters. During processing, defendant declined to sign the Miranda*fn1 waiver card. Fisler read to defendant the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e) (Standard Statement). Fisler testified that prior to reading the Standard Statement to defendant, "I make it a habit to tell people before I read it, I'm going to read you a form, it's all about the breathalyzer, at the end of it, it's a yes or no answer." Fisler stated that while he was reading the Standard Statement to defendant, "she was continually talking, not exactly paying attention and just rambling on and on." In response to the first question, defendant stated "whatever you want." On cross-examination, Fisler testified that in response to defendant's answer, "I'm sure I said to her that's not a yes or no answer." After reading the second question of the Standard Statement, defendant again responded, "whatever you want."*fn2

Fisler then proceeded to set up the breathalyzer machine, "at which time she was bringing up the fact that she didn't feel comfortable with me by myself. Because she was a nurse and that she thought there should be a female party there." Fisler called in Officer Gowan, a female, at which time defendant "stated that she wanted to talk to her husband first. And she was not going to take the test until she talked to her husband." Fisler testified that defendant never said, yes, she would take the breathalyzer test. As a result, defendant was charged with a violation of the refusal statute.

Upon the State's motion, the municipal court judge dismissed the reckless driving charge. The municipal court judge found defendant not guilty of DWI, but guilty of the refusal, and stayed the imposition of sentence pending the outcome of defendant's appeal to the Law Division.

On appeal in the Law Division, defendant contended that the State did not prove beyond a reasonable doubt that she refused to submit to the test upon request of the officer. Following a de novo hearing in the Law Division, Judge Jamie S. Perri, in a comprehensive oral opinion, found defendant guilty of violating the refusal statute, but stayed the imposition of sentence pending the outcome of this appeal. As both judges noted in their respective opinions, the evidence supported the factual findings.

On appeal, defendant raises the following argument for our consideration:

THE ALLEGATION THAT DEFENDANT VIOLATED N.J.S.A. 39:4-50.2 CANNOT BE SUBSTANTIATED BY THE EVIDENCE PRESENTED BELOW, THEREBY ...


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