October 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DOMENICK V. DIMINNI, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 17, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-025.
John Menzel argued the cause for appellant.
Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
Before Judges Simonelli and Accurso.
Following a trial de novo in the Law Division, on June 26, 2012, defendant Domenick V. Diminni was convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and failure to maintain a lane, N.J.S.A. 39:4-82. Defendant was sentenced to a seven-month driver's license suspension and to participate in the Intoxicated Driver Resource Center (IDRC) program for a period of twelve hours and install an ignition interlock device (the interlock device) in the motor vehicle he principally operates for six months after the expiration of his driver's license suspension. The court also imposed the appropriate fines, costs and surcharges.
According to Sergeant Giansanti (Sgt. Giansanti) of the Harding Township Police Department, at approximately 5:30 p.m. on March 12, 2011, he saw defendant driving his vehicle southbound in the northbound lane of Route 202 and then abruptly turn back into the southbound lane. Sgt. Giansanti activated the overhead lights and siren of his marked patrol car and stopped defendant. As the officer approached the driver's side of defendant's vehicle, defendant produced his driver's license, registration and insurance card, and said, "I'm okay. I'm going home down the road." Sgt. Giansanti asked defendant why he was driving on the wrong side of the road. Defendant gave no reason and did not indicate there was anything in the roadway that caused him to drive on the wrong side. Defendant merely responded, "I know. I'm okay. I'm really okay to drive." During this exchange, Sgt. Giansanti detected the smell of alcoholic beverage coming from inside defendant's vehicle.
Sgt. Giansanti asked defendant what day it was, where he was coming from and if he had consumed any alcohol. Defendant gave the wrong date and said he was coming from a friend's house in Morristown and had consumed "a beer or two." Defendant's speech was slow and slurred and he did not properly recite the alphabet or count backwards from thirty-three to nineteen, as the officer had requested. During this exchange, Sgt. Giansanti smelled alcohol on defendant's breath. He asked defendant to exit his vehicle and instructed him to perform sobriety field tests, which defendant did not properly perform. Sgt. Giansanti concluded that defendant was intoxicated and asked defendant "if he wanted to blow into [a portable breath test unit" (PBT)]".Defendant responded, that he need not blow into the PBT and "I don't believe in these. Arrest me if you need to." Sgt. Giansanti arrested defendant and transported him to the Township of Madison police headquarters in order to administer the Alcotest. During the transport, the officer smelled alcohol emanating from defendant.
Consistent with the implied consent and refusal laws, N.J.S.A. 39:4-50.2 and -50.4a, Sgt. Giansanti read to defendant the eleven instructions contained in the then-applicable Standard Statement For Operator of a Motor Vehicle (the Standard Statement), and asked defendant to submit samples of his breath. The Standard Statement included the following instructions:
8. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months and no more than 20 years. The Court will also fine you a sum of no less than $300 and no more than $2, 000 for your refusal conviction.
9. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.
10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an [IDRC], and you will be required to satisfy the requirements of that Center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.
The Standard Statement did not include an instruction about the installation of an interlock device.
Defendant refused to submit a breath sample, stating, "No, I will not." Sgt. Giansanti then read the Standard Statement's additional instructions and again asked defendant if he would submit samples of his breath. Defendant responded, "Sgt. Giansanti, I will not." Based on these facts, defendant was convicted of refusal to submit a breath test. This appeal followed.
On appeal, defendant raises the following contentions:
Because State Action Nullified Defendant's Implied Consent to Submit Breath Samples by Failing to Adequately Inform Him of the Consequences of Refusal and by Requesting Additional Breath Samples at the Scene in Violation of Accepted Procedures, This Court Should Acquit Him of Breath Test Refusal.
I. This Court Should Acquit Defendant of the Refusal Charge, Given the Failure of the Standard Statement Used Here to Adequately Inform Him of the Consequences He Faced If Convicted.
II. This Court Should Excuse Defendant's Failure to Submit Later Samples and Acquit Him of the Breath Test Refusal Charge Because Police Employed the Inherently Confusing Procedure of Requesting a Breath Sample into an Unapproved Device on the Street Without Reading A Motor Vehicle Commission Standard Statement.
We find insufficient merit in defendant's argument in Point II to warrant discussion in a written opinion beyond these brief comments. R. 2:11-3(e)(2)(E). Defendant's trial testimony does not establish that he was advised he had to submit to the PBT and faced a refusal charge if he failed to submit a breath sample. Defendant's testimony also does not establish that he was confused in any way about his obligation to submit an Alcotest breath sample. By contrast, the Standard Statement made crystal clear to defendant that the law required him to submit an Alcotest breath sample and he faced a refusal charge if he failed to do so.
We likewise find no merit in defendant's argument in Point I that this court must acquit him of refusal because the Standard Statement failed to adequately inform him of the interlock device consequences of a conviction. There is no question that Sgt. Giansanti read the correct Standard Statement to defendant, which adequately informed defendant that he must submit a breath sample or face serious consequences for refusal. Defendant refused despite knowing that his license would be revoked for a period of no less than seven months and no more than twenty years and he faced a fine of no less that $300 and no more than $2, 000, the possible imposition of a consecutive license suspension or revocation if convicted of related offenses, and mandatory participation in the IDRC. Facing these severe penalties, he still refused to submit a breath sample. It is difficult to see how an interlock device instruction would have changed his mind. Notably, he never testified that he would not have refused to submit a breath sample had he known about the interlock device penalty.
Furthermore, the installation of an interlock device does not carry the same impact as a license suspension. Defendant can still drive with an interlock device installed in his car; he just cannot drive while intoxicated. Thus, we conclude that the lack of an interlock device instruction on the Standard Statement read to defendant was inconsequential. See State v. O'Driscoll, ___ N.J. ___, ___ (2013) (slip op. at 22) (finding that a police officer's reading of an outdated Standard Statement was inconsequential because it "inform[ed] defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply").