NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0473-14T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, March 17, 2016 v. APPELLATE DIVISION DIANE MONACO,
Defendant-Appellant. _________________________________
Submitted November 5, 2015 – Decided March 17, 2016
Before Judges Alvarez, Ostrer and Manahan.
On appeal from the State of New Jersey, Law Division, Morris County, Municipal Appeal No. 13-041.
Diane Monaco, appellant pro se.
Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Diane Monaco appeals from her June 24, 2014
conviction, after a trial de novo, of driving while under the
influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50, and
refusing to submit to a chemical breath test, N.J.S.A. 39:4- 50.2. Having considered defendant's arguments in light of the
facts and applicable law, we affirm.
I.
At the municipal court trial, East Hanover Police Officers
Michael Filippone and Randy Patner testified for the State.
Defendant testified in her own defense. She also called Gil
Snowden, an expert of field sobriety tests; John Scolamiero,
M.D., her personal physician; and a friend, Claudette Maher. We
discern the following facts from the record.
Shortly after midnight on April 14, 2012, defendant drove
through a stop sign at a T-shaped intersection in a residential
neighborhood of East Hanover Township. Failing to turn right or
left, she continued forward, jumped the curb, and came to a stop
on the lawn of a residence. The airbag deployed.
When Filippone arrived at the scene, defendant's vehicle
was still in drive, but the engine was off. Filippone detected
the odor of alcoholic beverage. Defendant's speech was slurred.
Other aspects of defendant's appearance indicated intoxication.
She denied consuming any alcoholic beverages.
The officer administered field sobriety tests. Defendant
performed poorly on an alphabet test, skipping several letters.
Although she stated she had an injury to her left knee, the
officer observed that defendant had no difficulty walking. He
2 A-0473-14T2 asked her to perform the one-leg stand and heel-to-toe tests.
She did poorly on both. She was staggering and swaying. Her
eyes were watery and bloodshot; her face was flushed. The
officer arrested defendant, and she was transported to the
police station.
Defendant was initially held in a processing room for about
a half hour, as depicted by a video recording in evidence.
During that time, she was searched by a police matron, given a
Miranda1 warning, and read the standard statement regarding
chemical breath tests, and the DWI questionnaire. Patner also
completed a property report. Defendant appeared calm and
cooperative. She admitted she had consumed wine that evening.
An officer permitted her to use her inhaler for her asthma.
Over twenty minutes elapsed thereafter while Filippone, Patner
(who had also been dispatched to the scene), or the matron were
present in the room. Filippone and Patner both testified
defendant did not regurgitate or put anything in her mouth.
Defendant was then escorted to another room where Filippone
administered the breath test.
Filippone instructed defendant that she needed to breathe
in deeply, and blow in one long continuous breath until he
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 A-0473-14T2 directed her to stop. When defendant interjected that she had
used her inhaler, Filippone responded it would not interfere
with her test, because she had done so over twenty minutes
earlier. After the first attempt, Filippone asserted she was
not making a genuine effort to blow into the mouthpiece.
Defendant responded she had asthma. After two more attempts,
Filippone terminated the breath test.2 Defendant's air volumes
were .7, 1.0 and .5 liters, over 5.2, 5.9 and 4.1 seconds,
respectively. Defendant was then taken to a cell, where she
acted belligerently, yelled, and cursed.
Filippone's trial testimony presented the facts set forth
above. Patner testified that he observed defendant during the
twenty-minute observation period.
Defendant testified that she had one glass of wine at
dinner with her daughter, and a second glass while visiting
Maher at her home. She said she drove through the stop sign
while she was distracted by a phone call from Maher. She said
her knee injury, which she documented, prevented her from
performing well on the field sobriety tests. She also presented
2 Although the officer was authorized to terminate the test at that time, we do not condone the officer's harsh language. Having concluded defendant did not try to complete the test, he demeaned defendant, stating she disgusted him. The officer lacked the expertise to judge the extent of defendant's claimed disability.
4 A-0473-14T2 evidence of another medical condition to explain an aspect of
her appearance when arrested.
Defendant challenged Filippone's testimony. She asserted
he could not have detected an odor of alcoholic beverage as she
had consumed coffee at the end of the evening. She denied that
he asked her if she needed medical attention. She also
maintained he did not ask her to recite the alphabet, and he did
not adequately instruct her how to perform the physical field
sobriety tests. She asserted she blew as hard as she could when
performing the breath test.
Defendant also claimed there was an interruption in the
twenty-minute observation period because she was permitted to
leave the processing room to use the restroom in a cell, before
returning to the processing room. She asserted the police had
tampered with the video evidence.
Dr. Scolamiero, defendant's treating physician for roughly
twenty-five years, was permitted to testify as an expert in
internal medicine with treatment of pulmonary issues as part of
his practice. The doctor testified defendant suffered from
asthma, for which he had prescribed multiple medications. The
municipal court judge sustained an objection to the question
whether, in the doctor's opinion, defendant was able to exhale
1.5 liters of air during a four-and-a-half second period. The
5 A-0473-14T2 court held defense counsel had not laid a sufficient foundation.
Defense counsel never returned to the question, although the
doctor's testimony resumed on the next trial day, when he
presented pulmonary function tests he administered before and
after defendant's arrest.
The doctor reviewed the test results from November 11,
2011. He stated that post-treatment, defendant's "forced
expiratory volume" was only fifty-six percent of what was
predicted for a woman of her age, weight, and body mass index.
Her flow rate was forty-five percent of what was predicted. The
report indicated defendant had "moderate obstruction."
However, the doctor's explanation of the test results was
often confusing and self-contradictory, particularly when he was
asked to describe defendant's test results that would allow for
comparisons with the minimum breathing volumes required for the
chemical breath test.3 He did assert that defendant "had an
ability prior to being treated for approximately . . . 1.3 to
3 For example, the doctor was asked, "Doctor, now with regard to D-26 [the test results for June 25, 2012], can you calculate Ms. Monaco's flow rate in terms of liters per minute?" (emphasis added). He responded, "That was 1.643." He was asked to explain how he arrived at 1.643. He responded, "Forced expiratory volume which is in this case 133 times the percent .33, divided by her BMI." After the judge confirmed defendant's BMI, the doctor was asked, "And that figure again, Doctor, is what"? He answered, "1.643." He was asked "And that's liters per minute?" He answered, contrary to his answer earlier, "That's in four and a half seconds."
6 A-0473-14T2 1.4 liters over about four or five seconds." She improved to
three liters post-treatment. However, he noted that tests were
performed while defendant was standing. Her results would be
roughly twenty percent lower if seated while taking a chemical
breath test. He asserted that factors such as excitability,
nervousness, anxiety, and trauma could also negatively affect a
person's ability to breathe at a particular volume.
Snowden testified about how a person's physical impairments
could affect balance and performance on field sobriety tests.
Maher testified that defendant had a glass of wine early in the
evening, and a cup of coffee later. She stated she called
defendant shortly after she left, but did not reach her. Soon
thereafter, defendant called Maher to report the accident.
The municipal court credited the police witnesses over
defendant, and found her guilty of DUI and refusal. As
defendant had a prior DUI in 2009, the court imposed, on the
DUI, a two-year loss of license, forty-eight hours at the
Intoxicated Driver Resource Center (IDRC), no jail time, an
ignition interlock, and mandatory minimum fines and fees; and,
on the refusal, a consecutive two-year loss of license, forty-
eight hours at the IDRC, interlock to run concurrent, and
mandatory minimum fines and fees.
7 A-0473-14T2 In the trial de novo, defendant argued the police lacked
probable cause to arrest because they did not properly
administer the field sobriety tests; the police were not
credible; the police failed to observe defendant for the
requisite twenty-minute period; the police read her an outdated
standard statement; the state tampered with evidence; and Dr.
Scolamiero established that defendant was physically incapable
of breathing at a sufficient volume for the Alcotest. The Law
Division judge rejected each of these arguments.
The court found there was probable cause to arrest based on
the totality of the circumstances confronting the arresting
officers. Citing State v. Bealor, 187 N.J. 574, 589 (2006) and
State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993),
the court found that probable cause existed, even absent the
field sobriety tests, based on the single-car accident, the odor
of alcohol, defendant's physical appearance, and slurred speech.
The field sobriety tests only bolstered the finding of probable
cause. Coupled with her admission that she consumed wine, the
court found the State established beyond a reasonable doubt that
defendant was guilty of DUI.
The court rejected defendant's challenge to the officers'
credibility. Citing State v. Johnson, 42 N.J. 146, 157 (1964),
the court gave due, but not controlling, regard to the municipal
8 A-0473-14T2 court judge's determination that the officers were more credible
than defendant.
The court also found that the State proved, by clear and
convincing evidence, that the State complied with the twenty-
minute observation period required by State v. Chun, 194 N.J.
54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.
2d 41 (2008). The court was satisfied that Filippone and
Patner, as well as the matron, maintained sufficient proximity
to the defendant to detect whether she did anything to
compromise the chemical breath test, such as regurgitating or
putting something in her mouth. The court noted that eye-to-eye
contact was not required, citing State v. Carrero, 428 N.J.
Super. 495, 513 (App. Div. 2012), and State v. Filson, 409 N.J.
Super. 246, 258 (Law Div. 2009).
Relying on State v. O'Driscoll, 215 N.J. 461 (2013), the
court found that the failure to mention the prospect of an
ignition interlock in the standard statement was
inconsequential, as there was no indication it affected
defendant's non-compliance with the breath test. The court also
rejected defendant's claim that she left the processing room to
use the restroom, and that the police tampered with the video
evidence. The court closely examined the video evidence, and
concluded defendant's version of the facts lacked credibility.
9 A-0473-14T2 Finally, the court found that the State proved refusal
beyond a reasonable doubt. The court noted the four elements of
the violation, citing State v. Marquez, 202 N.J. 485, 503
(2010):
(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.
Based on the court's earlier findings, the State satisfied
the first and second elements; and the video evidence and
Filippone's testimony established the third and fourth.
The court focused on defendant's argument, based largely on
Dr. Scolamiero's testimony, that her asthma rendered her
incapable of producing the minimum volume required. The court
noted that Chun required most arrestees to produce a minimum
volume of 1.5 liters over 4.5 seconds, and a minimum flow rate
of 2.5 liters per minute. Chun, supra, 194 N.J. at 97. Women
over sixty years of age have to produce 1.2 liters over 4.5
seconds. Ibid.
The court found that Dr. Scolamiero's testimony ultimately
did not establish lack of capability. The court noted that he
10 A-0473-14T2 testified that during her November 2011 test, the last one
before the accident, she had a pre-treatment ability to blow 1.3
to 1.4 liters over about four to five seconds, which improved to
three liters after treatment. She also had a minimum flow rate
of 1.74 liters per minute, pre-treatment. The court noted that
defendant provided her breath samples after using her inhaler.4
The court found defendant guilty of DUI and refusal and
imposed the same sentence that the municipal court imposed.
On appeal, defendant presents the following points for our
review, renewing many of the arguments presented to the Law
Division:
Point 1: No Probable Cause.
Point 2: Credibility of the Police Officers.
Point 3: Twenty Minute Observation Period.
Point 4: Court Is Limited to Impose Only Consequences That The Defendant Had Been Informed Of; Incorrect Information on Ticket #1410-EHT-002619.
Point 5: Tampering With Evidence.
4 The court also stated that "defendant never tells the [o]fficers that she is incapable of producing the required volume; instead she informs the [o]fficers repeatedly that she uses and had just used her inhaler." However, as noted, defendant did tell Filippone that she had asthma after she failed to provide sufficient air volume in her first attempt.
11 A-0473-14T2 II.
In reviewing a trial court's decision on a municipal
appeal, we determine whether sufficient credible evidence in the
record supports the Law Division's decision. Johnson, supra, 42
N.J. at 162. Unlike the Law Division, which conducts a trial de
novo on the record, R. 3:23-8(a)(2), we do not independently
assess the evidence. State v. Locurto, 157 N.J. 463, 471
(1999). In addition, under the two-court rule, only "a very
obvious and exceptional showing of error" will support setting
aside the Law Division and municipal court's "concurrent
findings of facts . . . ." Id. at 474. However, where issues
on appeal turn on purely legal determinations, our review is
plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.
2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)), certif. denied, 209 N.J. 430 (2012).
Applying this standard of review, we affirm defendant's
conviction substantially for the reasons set forth in the
written opinion of the Law Division judge. We comment only on
two aspects of defendant's challenge to her refusal conviction:
the officer's failure to inform her that an ignition interlock
would be required if convicted of refusal; and allocation of the
burden of proof on the issue of her alleged incapability to
complete the chemical breath test.
12 A-0473-14T2 A.
Defendant renews her argument that she was not adequately
informed of the consequences of refusal because the officer did
not mention the ignition interlock requirement. We recognize
that the standard statement in use when defendant was arrested
in April 2012 did not refer to imposition of the ignition
interlock requirement upon conviction, notwithstanding that the
requirement was made a mandatory consequence of conviction in
2010. L. 2009, c. 201, §§ 2, 5 (Jan. 14, 2010). The standard
statement promulgated by the Attorney General was not revised to
incorporate mention of the ignition interlock consequences until
July 2012. See Office of the Attorney Gen., Standard Statement
for Motor Vehicle Operators (July 1, 2012), available at
http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf.
In O'Driscoll, supra, 215 N.J. at 468-69, 473-74, the Court
addressed the closely related issue of an officer's reading of
an outdated standard form that failed to incorporate various
enhancements of the license suspension period and potential
fines. The Court held that the question of whether a defendant
could avoid conviction for refusal because he was erroneously
read a superseded or outdated standard statement was subject to
a materiality test. Id. at 476. "Courts should consider
whether an error in the reading of the standard statement is
13 A-0473-14T2 material in light of the statutory purpose to inform motorists
and impel compliance." Id. at 466. The Court stated that
neither prior case law, nor the "language of the implied consent
statute . . . require absolute precision." Id. at 476.
In making the materiality finding, courts must "examine
whether a defendant reasonably would have made a different
choice and submitted to a breath test had the officer not made
an error in reciting the statement." Id. at 466. 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 477-
78. However, "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." Id.
at 478. The evaluation of a deviation's materiality "requires a
case-by-case evaluation of the facts." Ibid. Considering the
facts in O'Driscoll, the Court found "the officer's mistakes
were inconsequential" and the sentence imposed was within the
range recited by the officer. Id. at 478-79.
We note that O'Driscoll was decided in September 2013,
after all but summations and decision in the Municipal Court,
but before the trial de novo. The record contains no testimony
or other competent evidence to indicate that the mandated use of
14 A-0473-14T2 an ignition interlock device for six months would have deterred
defendant from refusing, particularly inasmuch as the prospect
of a lengthy license suspension did not. We therefore reject
defendant's argument that her conviction should be set aside
because the standard statement failed to advise her of the
ignition interlock requirement.
B.
We also conclude that a defendant bears the burden of proof
regarding his or her alleged physical impairment to complete a
chemical breath test.
The Court has held a defendant who defends a refusal charge
by claiming he did not speak or understand English, and
therefore did not understand the request to submit to the test,
bears both the burden of production and persuasion on the issue.
Marquez, supra, 202 N.J. at 514. This approach places the
burden on the party with the greatest access to information on
the issue, and "help[s] separate feigned claims from real ones."
Ibid. Similarly, a defendant bears the burden of persuasion to
establish he was too confused to refuse. State v. Leavitt, 107
N.J. 534, 542 (1987); State v. Sherwin, 236 N.J. Super. 510, 518
(App. Div. 1989). Although we are unaware of published New
Jersey authority that places the burden on a defendant to prove
15 A-0473-14T2 physical incapability to perform a breath test, this allocation
of the burden is consistent with Marquez and Leavitt.
Our conclusion is also consistent with out-of-state
authority. See, e.g., Hollis v. Oklahoma, 183 P.3d 996, 999-
1000 (Okla. 2008) (requiring defendant to present evidence he
was mentally incapable of giving a knowing and conscious
refusal); Dep't of Transp. v. Kelly, 335 A.2d 882, 884 (Pa.
Commw. Ct. 1975) (placing burden on defendant to prove by
competent evidence he was physically incapable of submitting to
Breathalyzer test); Cunningham v. Bechtold, 413 S.E.2d 129, 135-
36 (W. Va. 1991) (defendant had burden to show medical
disability, in form of broken nose, prevented him from breathing
into Breathalyzer); see also Harvey M. Cohen & Joseph B. Green,
Apprehending and Prosecuting the Drunk Driver § 5.07(7)(e)
(2015) ("In those courts where a refusal may be excused with
evidence that the defendant's ability to comply was legitimately
impaired, the defendant bears the burden of proving the
disability."); Richard E. Erwin, Defense of Drunk Driving,
Criminal-Civil (3d ed. 2015) § 4.08[8] ("The driver has the
burden of proving by competent evidence that he or she was
physically unable to take the test. When no obvious inability
is apparent, the driver must support a claim of inability with
16 A-0473-14T2 competent medical evidence, and failure to provide such evidence
will result in a finding of refusal.").5
Applying these principles, we discern no error in the
court's finding that defendant failed to demonstrate she was
incapable of performing the chemical breath test. Dr.
Scolamiero's testimony was often confusing and inconsistent. He
persuasively demonstrated that defendant suffered from asthma
and her breathing capacity was roughly half that predicted of a
woman her age and size. He also presented measurements of pre-
treatment breathing volumes and flow rates that fell below the
levels required for the chemical breath test.
However, defendant's measurements doubled after treatment,
producing a volume of three liters, which exceeded the minimum
requirement. Even if it were reduced by twenty percent to
account for a seated position, the measurement would exceed the
required 1.5 liters. The doctor was not asked whether two puffs
from an inhaler, as defendant took in the processing room, would
produce such an improvement. Nor was he asked, after presenting
5 Under the Criminal Code, "A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable." N.J.S.A. 2C:2-1(a). However, "the provisions of the Code governing principles of liability are not applicable to the motor vehicle violation of driving while intoxicated . . . ." State v. Hammond, 118 N.J. 306, 318 (1990).
17 A-0473-14T2 his testing data, whether he believed defendant was capable of
producing sufficient air volume when she was tested by
Filippone. Thus, the court reasonably found that defendant
failed to meet her burden of proving she was physically
incapable of producing the minimum air volume.
C.
To the extent not addressed, defendant's remaining
arguments lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
18 A-0473-14T2