State v. O'Driscoll

73 A.3d 496, 215 N.J. 461, 2013 WL 5223233, 2013 N.J. LEXIS 849
CourtSupreme Court of New Jersey
DecidedSeptember 18, 2013
StatusPublished
Cited by32 cases

This text of 73 A.3d 496 (State v. O'Driscoll) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. O'Driscoll, 73 A.3d 496, 215 N.J. 461, 2013 WL 5223233, 2013 N.J. LEXIS 849 (N.J. 2013).

Opinion

Chief Justice RABNER

delivered the opinion of the Court.

A police officer arrested defendant William O’Driscoll after watching him drive his SUV across the center line of the road— two times—and then fail a number of field tests. Consistent with the implied consent and refusal laws, N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a, the officer read defendant a standard statement designed to inform him of the consequences of refusal and to impel him to provide a sample of his breath.

Although the officer correctly told defendant that if he refused, his license could be revoked for up to twenty years, the officer read from an outdated form and misstated three other parts of the potential penalty: the officer said the minimum period of revocation was six months, not seven; the minimum fine was $250, not $300; and the maximum fine was $1000, not $2000.

Both the municipal court and the Law Division found the discrepancies immaterial and convicted defendant of refusal. The Appellate Division reversed. It relied on State v. Marquez, 202 N.J. 485, 998 A.2d 421 (2010), and State v. Schmidt, 206 N.J. 71, [466]*46619 A.3d 457 (2011), and concluded that the State had failed to inform defendant of the consequences of refusal.

We disagree. Courts 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. To do so, courts are to 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. An immaterial variation from the standard form does not require reversal of a conviction for refusal.

Because the errors in this case were not material and could not have reasonably affected defendant’s choice to refuse to provide a breath sample, we reverse and reinstate defendant’s conviction.

I.

We derive the following facts from the testimony of Officer Michael Gromek of the Harding Township Police Department. The officer testified at defendant’s municipal court trial.

At about 12:20 a.m. on November 15, 2009, Officer Gromek stopped defendant’s sport utility vehicle (SUV) after watching it cross the center line of the road for several seconds and later straddle the line for about two-tenths of a mile. After the officer approached the passenger side of the car and knocked on the front window, defendant opened the rear window at first. When defendant opened the front window, the officer smelled a very strong odor of alcohol from inside the car. During a brief exchange, the officer noticed that defendant slurred his words and observed that his eyes were watery, bloodshot, and droopy. Defendant denied drinking.

The officer asked defendant to perform certain tests while still in the car, but defendant could not successfully complete any of them. He could not recite the alphabet from the letter “E” to the letter “P” without mistakes; he could not count backwards from the number forty-five to the number twenty-three without mis[467]*467takes; and he could not perform a finger-dexterity test. In addition, according to the officer, defendant spoke very slowly, and his speech was slurred.

Defendant complied with the officer’s request to get out of the SUV but had trouble keeping his balance. He swayed, staggered, and kept his feet wide apart for balance as he walked to the rear of the ear. Defendant then failed two field sobriety tests: a one-leg-stand test and a walk-and-turn test.

When the officer asked for permission to move the SUV to a safer location, defendant agreed and volunteered that there was an open bottle of alcohol on the front passenger floor. The officer found an open bottle of champagne that was partly covered by a blanket and almost empty.

The officer then placed defendant under arrest and brought him to police headquarters. During the drive to the station, the officer smelled alcohol inside the police car.

After observing defendant for twenty minutes at the police station, the officer asked him to submit to a breath test. The officer read the following from the January 21, 2004 version of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle:

1. You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs with a blood alcohol concentration of 0.08% or more.
2. You are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
3. A record of the taking of the samples, including the date, time and results, will be made. Upon your request, a copy of that record will be made available to you.
4. Any warnings previously given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician, or anyone else present, for the purpose of taking the breath samples.
5. After you have provided samples of your breath for chemical testing, you have the right to have a person or physician of your own selection, and at your own expense, take independent samples and conduct independent chemical tests of your breath, urine or blood.
[468]*4686. If you refuse to provide samples of your breath, you will be issued a separate summons for this refusal.
7. Any response that is ambiguous or conditional, in any respect, to your giving consent to the taking of breath samples will be treated as a refusal to submit to breath testing.
8. According to N.J.S.A. 39:4-50.4a, 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 six months and no more than 20 years. The Court will also fine you a sum of no less than $250 and no more than $1,000 for your refusal conviction.
9. Any license suspension or revocation for a refusal conviction will 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 Intoxicated Driver Resource Center 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.
11. I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?
[ (Emphasis added).]

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Cite This Page — Counsel Stack

Bluebook (online)
73 A.3d 496, 215 N.J. 461, 2013 WL 5223233, 2013 N.J. LEXIS 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-odriscoll-nj-2013.