State of New Jersey v. Pedro Peralta

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5761-12T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, October 31, 2014
v. APPELLATE DIVISION
PEDRO PERALTA,
Defendant-Appellant.
______________________________________________________
Argued October 21, 2014 – Decided October 31, 2014
Before Judges Fisher, Accurso and Manahan.
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 Attor-ney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Grace H. Park,
Acting Union County Prosecutor, attorney;
Ms. Liebman, of counsel).
The opinion of the court was delivered by
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).1 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.
1
Defendant was also charged and convicted of careless driving,
which merged with the DWI conviction for sentencing purposes.
2 A-5761-12T1
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 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).2
Although the record is not clear on this point, we assume
for purposes of this appeal that the statutory statement was not
2
N.J.S.A. 39:4-50.2(e) states that "[t]he police officer shall
. . . inform the person arrested of the consequences of refusing
to submit to such test in accordance with [N.J.S.A. 39:4-50.4a].
A standard statement, prepared by the chief administrator [of
the Motor Vehicle Commission], shall be read by the police
officer to the person under arrest." As a result of Governor
Corzine's 2009 reorganization order, the authority to prepare
the statement was taken from the MVC and placed with the
Attorney General.
3 A-5761-12T1
read to defendant.3 We agree with the Law Division judge that an
officer's failure to read the statutory statement is irrelevant
when the accused submits to the test.
In the Law Division, defendant argued – and reprises that
argument here – that an unpublished opinion of this court holds
otherwise.4 Indeed, in that case, the panel reversed a DWI
conviction which was based on breathalyzer evidence because the
State failed to prove the statutory statement was read to the
defendant even though there was no refusal; the panel held that
the State must "establish the requisite fact of an accurate
reading of the proper statement beyond a reasonable doubt." The
trial judge, however, was not bound by the unpublished opinion,
see R. 1:36-3 (declaring "[n]o unpublished opinion shall
constitute precedent or be binding upon any court"), and neither
are we, nor would we be bound even if it had been published, see
3
At the municipal trial, the State offered no evidence that the
statutory statement was read to defendant, and defendant did not
testify. The issue did not surface until defendant's attorney
at the time raised it during his closing argument. In the Law
Division, the State sought to supplement the record with
testimony from an officer that the statement was read to
defendant in Spanish. The Law Division judge denied that
application, leaving the record silent on this factual matter.
4
Because, with a few exceptions inapplicable here, Rule 1:36-3
prohibits our citation to unpublished opinions, we do not
identify the unpublished opinion cited by the parties and
discussed by the municipal and Law Division judges in this
matter. Mt. Holly Twp. Bd. of Educ. v. Mt. Holly Twp. Educ.
Ass'n, 199 N.J. 319, 332 n.2 (2009).
4 A-5761-12T1
Brundage v. Estate of Carambio, 195 N.J. 575, 593-94 (2008)
(recognizing that "the decision of one appellate panel" is not
"binding upon another panel of the Appellate Division").
But, more importantly, we disagree with the holding
attributed to the unpublished opinion and reject the argument
that the failure to read the statutory statement matters when an
accused consents to providing a breath sample. To be sure, the
reading of the statutory statement is critical to a prosecution
for refusing to give a sample, see State v. Marquez, 202 N.J.
485, 501-02 (2010), but its significance elsewhere mainly lies
only with its potential for securing an accused's consent when
an equivocal response is first given, see State v. Spell, 395
N.J. Super. 337, 344 (App. Div. 2007), aff’d in part, mod. in
part, 196 N.J. 537, 539 (2008). The statutory statement is
inessential when consent is given.
That is, the mandate that the statutory statement be read
to an accused is part of a legislative framework that revolves
around the declaration that, by operating a vehicle on our
roadways, a driver "shall be deemed to have given his consent to
the taking of samples of his breath" for the purpose of
determining his blood alcohol content. N.J.S.A. 39:4-50.2(a).
In short, a driver has no right to refuse a request, and it is
in this context that the Legislature provided that a "standard
5 A-5761-12T1
statement . . . shall be read by the police officer to the
person under arrest" advising of the consequences of refusal.
N.J.S.A. 39:4-50.2(e). When this last provision is read in the
context of its neighboring provisions, see Brown v. Brown, 86
N.J. 565, 577 (1981) (recognizing that, in interpreting an
enactment, "[e]ach subsection should be read with respect to the
subject matter of the others and in harmony with each other and
with the whole"), all of which are related to the consequences
of an accused's refusal to provide a sample, see Marquez, supra,
202 N.J. at 501-02, it becomes readily apparent the statute was
not intended to impose on the State the burden of proving,
beyond a reasonable doubt, the reading of the statement in a DWI
prosecution where the accused provided a breath sample on
request.5
Although there is a relationship between the drunk-driving
laws and the refusal statutes, their primary goals are
different. The requirement that a statement be read to the
5
At oral argument, defendant took an alternate tack, arguing that
if not an element of the offense, a police officer's failure to
read the statutory statement to an accused provides a ground for
excluding the breathalyzer results. We need not consider this
question because defendant never moved for suppression of that
evidence in the trial court. See R. 3:5-7(f); see also State v.
Macon, 57 N.J. 325, 333 (1971); State v. Jenkins, 221 N.J.
Super. 286, 292-93 (App. Div. 1987), certif. denied, 113 N.J.
343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L.
Ed. 2d 975 (1989).
6 A-5761-12T1
accused explaining the consequences of a refusal was enacted to
redress the fact that previously drivers "did not have to submit
to blood-alcohol tests and faced no penalties if they refused to
do so." Marquez, supra, 202 N.J. at 497. There is nothing in
that statutory framework, however, that would suggest the
Legislature intended to impose an additional burden on the
prosecution of the drunk driving laws, the primary goal of which
is "to curb the senseless havoc and destruction caused by
intoxicated drivers." State v. Tischio, 107 N.J. 504, 512
(1987). Consequently, we reject the argument, supported only by
the non-precedential opinion relied upon by defendant, that the
State must prove "an accurate reading of the proper statement
beyond a reasonable doubt" in all DWI prosecutions based on a
breath sample given by consent.6
6
We recognize that the statutory statement also provides advice
for those who do not refuse by informing of the right to a copy
of the testing record and the right to give, at the accused's
own expense, an independent breath sample to a person or
physician of the accused's choosing. The bundling of the rights
accruing when consent is given with the rights pertaining to a
refusal somewhat confounds the issue, providing defendant with a
facile – and superficial – ground upon which to challenge his
conviction. We find no merit in the contention that the State
must prove the reading of the statement's many paragraphs
regarding refusal when the accused has freely consented to give
the sample. And, by the same token, there seems no point in
counseling an accused about the rights accruing when a sample is
given when the accused has refused to give a sample. Logic
might suggest there should be two statements, one for those who
have expressed a refusal to give the sample and one for those
(continued)
7 A-5761-12T1
Affirmed. The stay of the sentence pending appeal is
vacated.
(continued)
who consent; the content of the statutory statement, however, is
a matter for the Attorney General, not this court.
8 A-5761-12T1