October 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SALVATORE PAPPALARDO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 15-12.
Robbins and Robbins, L.L.P., attorneys for appellant (Mark S. Rothman, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Hayden.
Defendant, Salvatore Pappalardo, appeals from his conviction de novo in the Law Division for refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.2. Defendant contends that his conviction should be reversed because the arresting officer read him an outdated version of the Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle (standard statement), required to be read before the administration of a chemical breath test. N.J.S.A. 39:4-50.2(e). This standard statement did not include the potential penalty of installation of an ignition interlock device if defendant refuses to provide breath samples. See N.J.S.A. 39:4-50.4a(a). Thus, defendant contends he was denied due process. We disagree and affirm.
On September 8, 2011, a Township of Cranford police officer issued defendant a summons for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and a summons for refusal to submit to a chemical breath test (refusal), N.J.S.A. 39:4-50.2. On March 14, 2012, defendant pled guilty to the DWI charge in Cranford Municipal Court and moved for dismissal of the refusal charge or for the entry of directed verdict. The municipal judge denied both motions. Defendant then entered a conditional plea on the refusal charge, reserving the right to appeal the judge's denial of his motions.
The municipal court sentenced defendant to penalties, fines, costs, and license suspension as a first time offender on the DWI charge. On the refusal charge, the municipal court sentenced defendant to $300 in fines, $33 in court costs, $100 in a DWI surcharge, and a seven month license suspension. The judge did not require defendant to have an ignition interlock device installed on his vehicle.
Defendant appealed his municipal court conviction on the refusal charge. Following a de novo trial on June 11, 2012, the Law Division judge affirmed defendant's conviction and his sentence, which was stayed pending the outcome of the current appeal.
Defendant presents the following issue in this appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A DIRECTED VERDICT OF NOT GUILTY UNDER SUMMONS NUMBER CR 061107 ALLEGING A VIOLATION OF N.J.S.A. 39:4-50.2e WHERE THE STATE FAILED TO PROVE THAT THE DEFENDANT WAS ADEQUATELY ADVISED OF THE CONSEQUENCES OF FAILING TO SUBMIT TO A CHEMICAL BREATH TEST.
On an appeal such as this one, our role is to consider the action taken in the Law Division, not the action of the municipal court. State v. Adubato, 420 N.J.Super. 167, 175-76 (App. Div. 2011) (citing State v. Oliveri, 336 N.J.Super. 244, 251 (App. Div. 2001)), certif. denied, 209 N.J. 430 (2012). The Law Division, on the other hand, must give due regard to the magistrate judge's determinations on credibility findings in making its decision. Id. at 176 (citing State v. Johnson, 42 N.J. 146, 157 (1964)). We ordinarily are limited to determining whether the Law Division's findings were supported by sufficient credible evidence on the record. Ibid. (citing Johnson, supra, 142 N.J. at 162). Where, as here, the issues turn on purely legal issues, our review is plenary. Ibid. (citations omitted).
To sustain a conviction for refusal under N.J.S.A. 39:4-50.4a(a), the State must prove the following beyond a reasonable doubt:
(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) (citations omitted).]
Defendant argues that the State did not satisfy the third element listed above. Namely, defendant contends that the officer's failure to advise him of the ignition interlock device constituted a failure to provide him with the requisite information regarding the consequences of his refusal. We disagree.
Our Supreme Court, in State v. O'Driscoll, ___N.J.___ (2013), recently discussed this very issue. In O'Driscoll, the Court held that "[c]ourts should consider whether an error in the reading of the standard statement is material in light of the statutory purpose to inform motorists and impel compliance." Id. at___ (slip op. at 2). In making this determination of materiality, courts must look at whether, if the officer had recited a complete and accurate statement, the defendant reasonably would have made a different choice and complied with the request for breath samples. Ibid. "An immaterial variation from the standard does not require reversal of a conviction for refusal." Ibid.
The officer in O'Driscoll read an outdated version of the standard statement which inaccurately stated the minimum length of license revocation, the minimum fine, and the maximum fine. Id. at___ (slip op. at 6). The Law Division judge sentenced defendant to a seven-month license suspension on his refusal charge despite being told that he faced a minimum six month suspension. Id. at___ (slip op. at 9). We reversed defendant's conviction because the standard statement read to defendant "provided inaccurate information about the penalties he faced, ' and 'did not satisfy the statutory mandate' to inform defendant of the consequences of refusal." Id. at___ (slip op. at 10). Our Supreme Court reversed, finding "that the officer's mistakes were inconsequential" and the sentence imposed was within the range recited by the officer. Id. at___ (slip op. at 22).
In reaching that conclusion, the Court stated that neither Marquez, nor the "language of the implied consent statute . . . require absolute precision." Id. at___ (slip op. at 17); see also Marquez, supra, 202 N.J. at 503; N.J.S.A. 39:4-50.2(e). If an officer misreads a part of the standard statement, reversal of a conviction for refusal is not necessarily required, rather the materiality of the deviation must be examined. O'Driscoll, supra, ___N.J. at___ (slip op. at 18).
Under this approach, "discrepancies that would not have influenced a reasonable driver's choice to submit to a breath test would not" be deemed material and would not warrant reversal. Id. at___ (slip op. at 20). "On the other hand, substantive errors that do not adequately inform motorists of the consequences of refusal and would affect a reasonable person's decision-making would be problematic." Ibid. The evaluation of the materiality of a deviation must be undertaken on a case by case basis. Ibid.
Utilizing the foregoing standard, we conclude that the officer's deviation was not material. The officer failed to advise defendant of the possibility of an interlock device, which was not actually a part of the standard statement at that time. It is highly doubtful that defendant would have been more likely to feel impelled to give a breath sample if advised of the possible installation of such a device. This conclusion is made in light of the other substantial penalties, i.e. license revocation for seven months to twenty years, fines of $300 to $2000, and referral to an Intoxicated Driver Resource Center, that the officer read to defendant at the time of his refusal.
Moreover, the ignition interlock system penalty was not imposed on defendant. As the Law Division noted, "Courts are limited to impose only those consequences to refusal that the defendant had been informed of." As such, the standard statement contained all of the consequences to which defendant was actually subject.
We therefore conclude that defendant was fully apprised of the material consequences of his refusal and that the omission by the officer of the ignition interlock penalty was immaterial.