NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5612-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIELLE JAMARINO,
Defendant-Appellant. ____________________________
Submitted April 29, 2019 – Decided May 31, 2019
Before Judges Sabatino and Susswein.
On appeal from Superior Court, Law Division, Ocean County, Municipal Appeal No. 17-07.
John Menzel, attorney for appellant.
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the brief).
PER CURIAM Defendant Danielle Jamarino appeals from her convictions for driving
while intoxicated ("DWI") and for refusing to submit to a breath test ("refusal").
Defendant raises three issues on appeal. She contends, first, that the summons-
complaint that charged her with refusal was fatally defective because it
mistakenly cited to N.J.S.A. 39:4-50.2 rather than to the correct citation of
N.J.S.A. 39:4-50.4; second, that the Point Pleasant Beach Police Department
lacked procedures to safeguard her right to get an independent blood analysis;
and third, that the officer who administered the "standard statement" at the
police station failed to read the final portion of the statement.
All three contentions were addressed and rejected by the municipal court
judge who conducted the bench trial and the Superior Court judge who
conducted the trial de novo on defendant's appeal to the Law Division. We have
considered each of defendant's contentions on appeal in light of the record and
applicable legal principles and conclude that they are without merit. We
therefore affirm the convictions for both DWI and refusal.
I.
We rely on the trial record and the findings of the municipal court jud ge
who conducted the bench trial and the Superior Court judge who heard the trial
A-5612-17T4 2 de novo on appeal to the Law Division. We briefly summarize the facts elicited
at trial to place our legal conclusions in context.
On November 3, 2016, police received a report of a vehicle being driven
erratically. Then-sergeant Gerald Quaglia 1 observed defendant's vehicle pass
his patrol car travelling in excess of the posted speed limit. He ordered
defendant to pull over, and she complied, pulling into the parking lot of a diner.
The officer noticed that her face was flush and her eyes were watery and
bloodshot. He also detected the odor of alcohol on her breath. When questioned,
she stated that she had consumed three or four glasses of wine.
Defendant had difficulty maintaining her balance as she exited her
vehicle. Lieutenant Quaglia administered a battery of field sobriety tests, which
she failed. For example, she recited the alphabet only up to the letter "T," at
which point she had to start over. She could not perform the "walk and turn"
test while keeping her arms at her side and walking heel-to-toe. Nor could she
perform the one-legged-stand test.
1 Sergeant Quaglia was promoted to the rank of lieutenant before the trial was heard and he was referred to at trial as Lieutenant Quaglia.
A-5612-17T4 3 Based on his observations, Lieutenant Quaglia arrested defendant for
drunk driving and she was transported to the police station. There, Lieutenant
Quaglia administered the Miranda2 warnings and read the "N.J. ATTORNEY
GENERAL'S STANDARD STATEMENT FOR MOTOR VEHICLE
OPERATORS (N.J.S.A. 39:4-50.2(e) (revised & effective July 1, 2012))."
Paragraph No. 9 of that "standard statement" reads, "I repeat, the law requires
you to submit samples of your breath for testing. Will you submit samples of
your breath?" Defendant unequivocally answered "no" to that question.
At the conclusion of the bench trial, the municipal court judge made
specific findings regarding the credibility of the trial witnesses, stating:
I've sat in contemplation of these cases for well over 30 years, and I've seen officers that lie. I've seen defendants that lie. I have to tell you, this lieutenant's testimony here today was the most credible testimony I've seen in a long time. I'm not swayed by anything [the defendant] tells this Court. I am satisfied that the credible version of what occurred on the date and time in question is that presented on behalf of the State.
Based on the foregoing facts elicited at the trial, the municipal court judge
acquitted defendant of reckless driving, but found her guilty of DWI based on
the lieutenant's observational evidence and found her guilty of refusing to
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-5612-17T4 4 submit to a breath test. On a trial de novo to the Superior Court, the Law
Division judge affirmed those convictions.
Defendant was sentenced on the DWI conviction to revocation of driving
privileges for ninety days, to attend twelve hours at an Intoxicated Driver
Resource Center (IDRC), a $360 fine, $350 in surcharges, and $33 in court costs.
Defendant was sentenced on her refusal conviction to revocation of driving
privileges for seven months to be followed by six months during which she must
use an alcohol ignition interlock device, to attend twelve hours at an IDRC, a
$360 fine, $100 in surcharges, and $33 in court costs. The suspension of driving
privileges and IDRC sentences were ordered to be served concurrently.
Execution of the sentence, including suspension of defendant's driving
privileges, has been stayed throughout the pendency of this appeal.
II.
On appeal, defendant raises the following contentions:
I. THIS COURT SHOULD DISMISS COMPLAINT PPC-086217 CHARGING DEFENDANT WITH "REFUSAL" IN VIOLATION OF N.J.S.A. 39:4-50.2, BECAUSE REFERENCE TO THIS "IMPLIED CONSENT" STATUTE CONSTITUTES A FATAL DEFECT IN THAT THE STATUTE DOES NOT DEFINE AN OFFENSE.
II. THIS COURT SHOULD DISMISS ALLEGATIONS BASED ON DEFENDANT'S
A-5612-17T4 5 FAILURE TO SUBMIT BREATH SAMPLES BECAUSE THE POLICE DEPARTMENT LACKED PROCEDURES NECESSARY TO PROTECT HER RIGHTS.
III. THIS COURT SHOULD FIND DEFENDANT NOT GUILTY OF REFUSING TO SUBMIT BREATH SAMPLES BECAUSE THE EVIDENCE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT WHETHER SHE WAS PROPERLY ADVISED OF HER RIGHTS AND OBLIGATIONS CONCERNING THE SUBMISSION OF BREACH SAMPLES.
A.
Defendant argues that the summons that charged her with refusal was
fatally defective because it mistakenly cited to N.J.S.A. 39:4-50.2 rather than to
N.J.S.A. 39:4-50.4. The State acknowledges the summons cites to the implied
consent statutory provision in the motor vehicle code rather than to the statutory
provision that actually defines the refusal offense. The legal question before us
is whether this was merely a technical defect or whether instead it was a mistake
of such magnitude as to require that we overturn defendant's refusal conviction.
In State v. Cummings, 184 N.J. 84 (2005), the Supreme Court commented
in a footnote that care should be taken to list N.J.S.A. 39:4-50.4(a) rather than
N.J.S.A. 39:4-50.2 when charging a refusal offense. Id. at 90 n.1. The Court
also indicated "we see no prejudice resulting from it [the incorrect citation in
the complaint]." Ibid.
A-5612-17T4 6 In the case before us, as in Cummings, greater care should have been
exercised in listing N.J.S.A. 39:4-50.4(a) in the body of the summons. But also
as in Cummings, Jamarino was not prejudiced by the citation error. Defendant
offers no explanation as to how or why the faulty citation inhibited her ability
to prepare and present a trial defense. It is hard to imagine how she might
possibly have been confused as to what specific offense she had to answer to at
trial. In State v. Marquez, 202 N.J. 485 (2010), the Supreme Court recognized
that N.J.S.A. 39:4-50.2 and N.J.S.A. 39:50.4 are "plainly interrelated" and that
they "not only cross-reference one another internally, but they also rely on each
other substantively. They must therefore be read together." Id. at 501-02.
Defendant relies on State v. Nunnally, 420 N.J. Super. 58 (App Div.
2011), for the proposition that the citation error was more than a technical
defect. Her reliance on Nunnally is misplaced, however, as the circumstances
presented in that case are markedly different from the situation presented in this
appeal. In Nunnally, the defendant held a commercial driver's license (CDL)
and was arrested for operating a commercial vehicle while under the influence.
Id. at 62. The summons, however, charged the defendant with the general refusal
offense, N.J.S.A. 39:4-50.4, rather than the distinct offense set forth in a
different part of the motor vehicle code that applies to operators of commercial
A-5612-17T4 7 vehicles, N.J.S.A. 39:3-10.24. The summons could not be amended on the day
of trial to reflect the correct CDL refusal offense because the ninety-day statute
of limitations had expired. Nunnally, 420 N.J. Super. at 62-63.3
We concluded in Nunnally that the error in the charging instrument was
not merely a technical defect because the material elements of the general refusal
offense are substantively different from the elements of the CDL refusal offense.
For example, the CDL refusal statute requires that police have probable cause
to believe that the driver has a 0.04% blood alcohol content (BAC), which is a
much lower threshold than the one that applies to the general refusal statute. In
short, the charging instrument averred the wrong offense, charging a different
substantive offense than the one that the defendant had been arrested for and
that the State sought to prosecute at trial.
We recognized in Nunnally that in order to prepare a defense, a defendant
must know the offense with which he or she is charged. Id. at 66. In the
circumstances presented in that case, the summons failed to provide the
3 We noted in Nunnally that for future guidance, a commercial vehicle driver whose conduct violates both the general and CDL DWI statutes may be arrested and charged under both statutes. If the driver refuses a breath test after being advised of the consequences of refusal pertaining to both statutes, the driver may also be charged under both refusal statutes. Nunnally, 420 N.J. Super. at 63. A-5612-17T4 8 defendant with notice as to the specific offense that the State intended to
prosecute at trial.
In the present case, in contrast, defendant was not charged with the wrong
offense, that is, an offense different from the one for which she was arrested and
eventually tried and convicted. Rather, the error in the charging instrument in
the present case is that it refers to a statutory provision that does not define any
offense at all. The provision cited in the charging instrument instead implements
the so-called "implied consent" concept in our DWI enforcement jurisprudence,
setting out the procedures police must follow for obtaining BAC samples when
investigating a suspected violation of the refusal offense that is defined in
another subsection of the motor vehicle code. However, the statutory provi sion
that was listed in the summons that was issued to Jamarino explicitly cross -
references the correct statutory provision, that is, the subsection of the motor
vehicle code that does define the refusal offense.
Our determination in Nunnally that the charging instrument error was
substantive and not merely technical was predicated on the self-evident
proposition that in order to prepare a defense, a defendant must know the offense
with which he or she is charged and must defend at trial. The error in that case
was legally significant because the summons charged the wrong offense – one
A-5612-17T4 9 that had different material elements – and thus had a clear capacity to mislead
the defendant with respect to the material elements that the prosecutor needed
to prove at trial. The fair notice concern at the heart of the Nunnally decision
simply does not exist in the present case because defendant was not misled into
believing that she was charged with any offense other than the refusal offense
for which she had been arrested and ultimately tried. Accordingly, there is no
reason to overturn defendant's refusal conviction.
B.
Defendant contends that the Point Pleasant Beach Police Department
lacked procedures to safeguard her right to get an independent blood
examination pursuant to N.J.S.A. 39:4-50.2(c). That contention is clearly
without merit because defendant never alerted police that she wanted an
independent test. Accordingly, her statutory right to have an independent
examination performed was not invoked and thus could not be violated.
Defendant's reliance on State v. Broadly, 281 N.J. Super. 230 (Law Div.
1992), is misplaced. In that case, the defendant went to a hospital and requested
an independent blood test. The hospital refused to take the blood sample without
authorization from the police and the police officer who was contacted by the
hospital refused to give the authorization. Id. at 233-34. The Law Division
A-5612-17T4 10 judge concluded that the absence of a departmental policy designed to
implement and safeguard the option of getting an independent blood test
deprived Broadly of the statutory right under N.J.S.A. 39:4-50.2(c) to have the
examination conducted by the hospital staff who were waiting for police
authorization that was never provided.
The situation in the present case is markedly different from Broadly in
that Jamarino never requested police to permit or facilitate independent testing.
Absent a request to invoke the right to independent testing explained in
paragraph No. 4 of the standard statement 4 that was read to her, the police would
have no way of knowing that defendant wanted to have any such independent
examination. Thus, even giving defendant the benefit of the assumption that she
actually had a desire for independent testing at the time of her arrest, the fact
that she did not communicate that desire is fatal to her claim on appeal. The
right to independent testing established in N.J.S.A. 39:4-50.2(c) is not self-
4 Paragraph No. 4 of the standard statement reads:
After you have provided samples of your breath for testing, you have the right, at your own expense, to have a person or physician of your own selection take independent samples of your breath, blood or urine for independent testing. A-5612-17T4 11 executing. A defendant cannot complain that police deprived her of a right
under this statute that was never asserted.
We believe that this issue is governed not by Broadly, but rather by the
common sense reasoning in State v. Jalkiewicz, 303 N.J. Super. 430 (App. Div.
1997). We noted in Jalkiewicz that to be entitled to relief, "it must be shown
that the absence of established police procedures has interfered with or thwarted
defendant's attempt to exercise the right to an independent examination." Id. at
434. There was no such affirmative interference or thwarting in the case before
us because there was no attempt to exercise the right to an independent
examination. Just as the police in this case were given no opportunity to
facilitate independent testing, they had no opportunity to impede it. What we
are left with, therefore, is a totally hypothetical situation where a defendant
belatedly asserts that she was denied a statutory right under circumstances where
police could neither safeguard nor frustrate that right.
Although defendant's failure to advise police that she wanted an
independent BAC test provides reason enough to reject her contention, we would
add in the interest of completeness that the plain language of N.J.S.A. 39:4-
50.2(c) suggests that the statutory right to independent testing can be invoked
A-5612-17T4 12 only after a defendant has submitted to breath or blood testing at the direction
of police. The statute provides:
In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
[Ibid. (emphasis added).]
The highlighted language indicates that the independent examination
contemplated in the statute is to be in addition to, not in lieu of, the samples that
are provided by a DWI suspect to police pursuant to N.J.S.A. 39:4-50.2. This
interpretation of the statute is supported by our opinion in Jalkiewicz, where we
noted that the relief for deprivation of the statutory right to secure an
independent examination is the exclusion of the evidence obtained by the police.
Jalkiewicz, 303 N.J. Super. at 433-34. That form of relief is inapposite, of
course, where there is no BAC evidence to suppress by reason of defendant's
unlawful refusal to submit to breath testing.
This interpretation also is consistent with paragraph No. 4 of the standard
statement that was read to defendant. That paragraph explains unambiguously
that the right to an independent test arises "[a]fter you have provided samples of
your breath for testing." See footnote 4. This interpretation of the implied-
A-5612-17T4 13 consent statute by the Chief Administrator of the Motor Vehicle Commission is
entitled to deference. See Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super.
52, 56 (App. Div. 2001) (an administrative agency's interpretation of statutes
and regulations within its implementing and enforcing responsibility i s
ordinarily entitled to an appellate court's deference); see also State v. Spell, 196
N.J. 537, 540 (2008) (deferring to authority of the Chief Administrator to
prepare and revise the standard statement).
Finally, with respect to defendant's contention regarding the right to
independent BAC testing, we note that it is not clear to us how this defendant
would even know what the Point Pleasant Beach Police Department's procedures
are for implementing N.J.S.A. 39:4-50.2. As noted above, the police were not
afforded the opportunity to demonstrate either the adequacy or inadequacy of
their independent-testing procedures. What is clear to us is that it would be
inappropriate on these facts to reverse a DWI conviction that was based on the
observational testimony of a police witness found to be exceptionally credible,
predicated on a hypothetical deprivation of an unasserted right by a defendant
who unlawfully refused to submit a breath sample.
A-5612-17T4 14 C.
Defendant contends that the police did not read to her the last portion of
the standard statement. 5 That is true. But it is also true that the arresting officer
was not required to read the last paragraph of the standard statement , in view of
defendant's unequivocal refusal to submit a sample of her breath.
Lieutenant Quaglia testified that he read the standard statement to the
defendant and that when he asked in paragraph No. 9 if she would submit the
samples of her breath, she said "no" and wrote her response on the form as "no."
It is not disputed that the officer did not read the last paragraph of the standard
statement.
5 The phrase "last portion" or "second portion" refers to the last two unnumbered paragraphs of the standard statement form that was used in this case. Those paragraphs read:
If the arrested person does not respond, or gives any ambiguous or conditional answer short of an unequivocal "yes," the police officer shall read the following:
Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer with anything other than "yes," I will charge you with refusal. Now, I ask you again, will you submit to breath testing? A-5612-17T4 15 The municipal court judge rejected defendant's testimony in which she
claimed that the standard statement had not been read to her at all. The
municipal court judge found that, "There's no doubt in my mind that the officer
read the statement to the defendant." The municipal court judge also found that
defendant was "advised under the Standard Statement that she had an obligation
to submit to a breath test and she unequivocally responded no." The judge added
that "there is nothing equivocal about the word no which was the defendant's
response at the time. So there was no reason to read the second portion of the
standard statement."
It is well-settled that we are to give deference to the factual findings of a
trial court. In State v. Locurto, 157 N.J. 463 (1999), the defendant appealed a
municipal court conviction to the Law Division, and the Superior Court judge's
findings were predicated upon the credibility findings of the munici pal court
judge. In those circumstances, which are essentially the same as the
circumstances in the present case, the Court in Locurto noted that:
The rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.
A-5612-17T4 16 [Id. at 474.]
See also State v. Reece, 222 N.J. 154, 166-67 (2015) (appellate review of the
factual and credibility findings of the municipal court and the Law Division is
exceedingly narrow). It bears repeating that the municipal court judge took
pains to highlight Lieutenant Qauglia's credibility, remarking that the
lieutenant's testimony was the most credible that the judge had seen in a long
time. We also note that the standard statement entered into evidence and
provided to us in the appendix to defendant's brief clearly indicates that a single
word, "no," was recorded as the written answer to question No. 9.
The standard statement provides that the last paragraph need only be read
to a DWI arrestee if he or she gives "any ambiguous or conditional answer short
of an unequivocal 'yes.'" See footnote 5. We interpret that to mean that the last
paragraph of the standard statement need not be read when the arrestee gives
any unequivocal answer, be that answer yes or no.
Defendant relies on a portion of our opinion in State v. Spell, 395 N.J.
Super. 337, 348 (App. Div. 2007), for the proposition that officers must read the
last paragraph of the standard statement whenever the defendant refuses to take
a breath test upon request. As defendant now puts it, in Spell, the Appellate
A-5612-17T4 17 Division made a "suggestion"6 when we remarked, "we think it prudent to hold
that, effective on October 1, 2007, officers must read the additional paragraph
of the form whenever the defendant refuses to immediately take the breathalyzer
exam upon request." Ibid.
Defendant acknowledges that the Supreme Court expressly vacated the
above-quoted portion of the Appellate Division opinion. Spell, 196 N.J. 537
(2008). Defendant nonetheless contends that the Supreme Court left the door
open, arguing that the Supreme Court vacated that part of our decision only
because "[t]he Appellate Division's holding that requires that police officers
read that final, additional paragraph of the standard statement in all cases was
not necessary to the determination of this case." 7 Ibid. Defendant contends that
6 Our opinion in Spell makes clear that this was not a mere suggestion. On the contrary, the opinion unambiguously describes the prospective requirement to read the last paragraph in all cases where an arrestee refuses to immediately take a breath test as "our holding." Spell, 395 N.J. Super. at 348. So too, the Supreme Court refers to this portion of our opinion as "the Appellate Division's holding." Spell, 196 N.J. at 537. 7 There can be no doubt that the language in our opinion that would have required police to read the last paragraph whenever a defendant refuses to immediately take a breath test was not "necessary to the determination of the case" because that requirement was made prospective only effective October 1, 2007 (our opinion in Spell was announced on July 31, 2007). We explicitly noted in this regard that "[b]y making our holding prospective, we avoid the problems of application to DWI arrests before that date and provide adequate
A-5612-17T4 18 the Supreme Court did not "substantively disapprove" of a requirement to read
the last portion in all cases, and she urges us in this appeal not only to resuscitate
our previous holding but also tacitly requests us to make the new requirement
retroactive so as to inure to her benefit.
We do not agree with defendant that the Supreme Court vacated that
narrow portion of the otherwise-affirmed Appellate Division opinion in Spell
solely because the redacted language was not necessary to the determination of
that case. In fact, the Supreme Court in the very next sentence of its opinion
explained why it was deleting this language from the Appellate Division
opinion, stating:
We take that action [vacating that portion of the Appellate Division opinion] because the Legislature has vested in the Chief Administrator of the Motor Vehicle Commission . . . the authority to determine the contents and procedure to be followed in respect of that standard statement. N.J.S.A. 39:4-50.2(e) (providing that the 'standard statement [that] shall be read by the police officer to the person under arrest' is to be prepared by the Chief Administrator of the Motor Vehicle Commission). Rather, in keeping with the express legislative allocation of responsibilities set forth in N.J.S.A. 39:4-50.2(e), we refer the procedure outlined by the Appellate Division to the Chief Administrator of the Motor Vehicle Commission for
notice of the requirement." Spell, 395 N.J. Super. at 348. Thus, the new requirement would not have benefited the defendant, and thus by definition was not necessary to the result in that case. A-5612-17T4 19 consideration. See State v. Widmaier, 157 N.J. 475, 498-99, 724 A. 2d 241 (1999) (recognizing that when 'it may be in the interest of both law enforcement officials and the driving public to amend the standard statement in order to eliminate any ambiguity concerning a motorist's intent to submit to the test[,]' judiciary may 'recommend a modification to the instructions accompanying the statement[;]' it may 'urge [that Chief Administrator of the Motor Vehicle Commission] consider revising the standard statement' as recommended; and it may 'encourage [that Chief Administrator] simplify and clarify' statement). And, because the decision to amend the standard statement is vested in the sound discretion of the Chief Administrator, we do not retain jurisdiction over that aspect of this judgment.
[Id. at 540.]
So far as we are aware, the Attorney General 8 has not amended the
standard statement to require that the last paragraph be read in all cases. That
being so, and for the reasons stated by the Supreme Court in Spell, it is not our
place to impose such a requirement, either prospectively or retroactively.
In sum, the law remains unchanged that the last portion of the standard
statement is required to be read only when the arrested person has given an
ambiguous or conditional response. In this instance, both the municipal court
8 Effective August 3, 2009, the responsibility for the promulgation of standard statements regarding implied consent to chemical breath test statutes was transferred from the Chief Administrator of the Motor Vehicle Commission to the Attorney General. 41 N.J.R. 2825(a). A-5612-17T4 20 judge and Law Division judge found that defendant gave an unequivocal "no"
when asked whether she would provide a breath sample. There is no basis to
disturb that factual finding, which is amply supported by the record, and thus no
basis to disturb the fact-sensitive legal conclusion that the officer was not
required in these circumstances to read the last portion of the standard statement.
Affirmed. The stay of execution of the sentence is vacated effective
twenty days after the issuance of this opinion, and defendant shall have twenty
days from the issuance of this opinion to surrender her driver's license to the
municipal court.
A-5612-17T4 21