Argued October 21, 2014.
Approved for Publication October 31, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6049.
Scott C. Buerkle argued the cause for appellant ( The Buerkle Law Firm, attorneys; Mr. Buerkle, on the brief).
Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent ( Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, of counsel).
Before Judges FISHER, ACCURSO and MANAHAN. The opinion of the court was delivered by FISHER, P.J.A.D.
[437 N.J.Super. 571] OPINION
[437 N.J.Super. 572] FISHER, P.J.A.D.
In this appeal, we consider the alleged failure of police to read to defendant, who had been arrested for driving while intoxicated (DWI), the standard statement advising of the consequences of refusing to provide a breath sample. We conclude, as did the trial court, that this failure was not fatal to the DWI prosecution for the simple reason that defendant did not refuse to provide a breath sample.
On November 6, 2011, defendant was arrested and charged with DWI, N.J.S.A. 39:4-50(a). At the conclusion of a municipal trial, the judge determined that the police officer's observations of defendant before and during the field sobriety test established probable cause to conduct a breathalyzer test, but he also found those observations were not sufficiently convincing to support a DWI conviction. The judge, however, convicted defendant of DWI on the basis of breathalyzer evidence, which demonstrated defendant's blood alcohol content (BAC) was 0.19, well in excess of the 0.08 legal limit, N.J.S.A. 39:4-50(a). Defendant was sentenced as a second-time DWI offender, and the judge imposed: fines, court costs, and other monetary penalties; thirty days of community service; two days of jail time; a two-year suspension of defendant's driving privileges; and a requirement that an interlock device be installed and remain in defendant's vehicle for two years.
Defendant appealed to the Law Division. He also applied for, and was granted, a stay of the suspension of his driving privileges. The Law Division judge convicted defendant based on the BAC reading and imposed the same sentence. The judge also stayed defendant's sentence pending appeal.
In this appeal, defendant seeks reversal of his DWI conviction because he claims the standard statement was not read to him prior to the administration of the Alcotest and because the police [437 N.J.Super. 573] officer's observations failed to prove beyond a reasonable doubt that defendant was intoxicated. The latter point is irrelevant; defendant was not convicted on the basis of the officer's observations. We, thus, turn to the first point -- that the conviction cannot stand because the police officer failed to read to defendant the statement (" the statutory statement" ) referred to in N.J.S.A. 39:4-50.2(e).
Although the record is not clear on this point, we assume for purposes of this appeal that the statutory statement was not read to defendant. We agree with the Law Division judge that an officer's failure to read the statutory ...