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NOT FOR PUBLICATION WITHOUT THE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