State of New Jersey v. Iris Quintero

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2186-13T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 27, 2016
v.
APPELLATE DIVISION
IRIS QUINTERO,

Defendant-Appellant.
——————————————————————————————

Argued December 8, 2015 – Decided January 27, 2016

Before Judges Hoffman, Leone and Whipple.1

On appeal from Superior Court of New Jersey,
Law Division, Union County, Municipal Appeal
No. 6050.

Greggory M. Marootian argued the cause for
appellant.

Kimberly L. Donnelly, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Grace H. Park,
Acting Union County Prosecutor, attorney;
NaSheena D. Porter, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

The opinion of the court was delivered by

HOFFMAN, J.A.D.

1
Judge Whipple did not participate in oral argument. She joins
the opinion with counsel's consent. R. 2:13-2(b).
Defendant appeals from her de novo conviction for refusal

to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant

argues that her conviction should be vacated because the

Attorney General's current standard statement under N.J.S.A.

39:4-50.2(e) is fundamentally deficient for not specifying the

mandatory minimum penalties for refusal. For the reasons that

follow, we affirm.

On December 7, 2012, defendant consumed several vodka and

cranberry juice cocktails before driving her vehicle in Roselle

Park. Defendant's tire blew out, but she continued driving on

the tire rim until the Roselle Park Police finally stopped her.

After defendant failed street sobriety tests, the officer

transported her to police headquarters. There, defendant

refused to submit to a breath test, even after the officer read

the standard statement2 indicating the consequences if she did

not take the breath test.

The officer charged defendant with driving while

intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a

2
The full text of the "N.J. Attorney General's Standard
Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.2(e))
(rev. & eff. July 1, 2012)" can be found at
http://www.njsp.org/divorg/invest/pdf/adtu/070912_dwi_standardst
atement.pdf.

2 A-2186-13T4
breath test, N.J.S.A. 39:4-50.4a,3 and careless driving, N.J.S.A.

39:4-97. In the Roselle Park Municipal Court on February 28,

2013, defendant pled guilty to DWI and entered a conditional

guilty plea to the refusal charge, reserving her right to

challenge the sufficiency of the standard statement on appeal.4

On the DWI charge, the court imposed a $406 fine, $33 in court

costs, a $200 DWI assessment, a $75 Safe Neighborhood Services

Fund assessment, a $50 Violent Crimes Compensation Board

penalty, twelve hours of Intoxicated Driver Resource Center

classes, and a three-month license suspension to run concurrent

with the refusal sentence. On the refusal charge, the court

sentenced defendant to a $506 fine, a $100 DWI assessment, $33

in court costs, seven-month loss of license, and six months with

an ignition interlock. The court stayed the refusal portion of

the sentence pending de novo appeal to the Law Division.

On October 28, 2013, Judge Regina Caulfield found defendant

guilty and imposed the same sentence for defendant's refusal

conviction. The judge memorialized her decision in a November

27, 2013 order, which further stayed the refusal sentence

pending this appeal.

3
The e-ticket for this charge incorrectly listed the violated
statute as N.J.S.A. 39:4-50.2; however, this mistake has not
been raised as an issue in the instant appeal.
4
The court dismissed the careless driving charge.

3 A-2186-13T4
Defendant presents the following issue in this appeal:

THE CHARGE OF REFUSAL TO SUBMIT IS
FUNDAMENTALLY FLAWED. THE NEW JERSEY MOTOR
VEHICLE STANDARD STATEMENT READ TO QUINTERO
FAILED TO "INFORM [QUINTERO] OF THE
CONSEQUENCES OF REFUSING TO SUBMIT" AS
REQUIRED BY [N.J.S.A. 39:4-50.2(e)].

II.

On this appeal, we do not review the fact-findings of the

Law Division, which are generally entitled to our deference.

State v. Johnson, 42 N.J. 146, 158-59 (1964). Rather, we review

the court's legal determination regarding the sufficiency of the

standard statement. Where, as here, the issues turn on purely

legal interpretations, our review is plenary. State v. Adubato,

420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209

N.J. 430 (2012).

New Jersey's drunk-driving legislation is designed "to curb

the senseless havoc and destruction caused by intoxicated

drivers." State v. Marquez, 202 N.J. 485, 496 (2010) (quoting

State v. Tischio, 107 N.J. 504, 512 (1987)). "To improve

enforcement efforts and address the high rate of refusal by

motorists who declined to submit to blood-alcohol tests, the

Legislature in 1966 enacted the implied consent law, N.J.S.A.

39:4-50.2, and the refusal law, N.J.S.A. 39:4-50.4a." State v.

O'Driscoll, 215 N.J. 461, 472-73 (2013) (citing Marquez, supra,

4 A-2186-13T4
202 N.J. at 497). Accordingly, all motorists on New Jersey

roads are "deemed to have given . . . consent" to a breath test

under the implied consent law. Id. at 473 (citing L. 1966, c.

142, § 2 (codified as amended at N.J.S.A. 39:4-50.2)).

The implied consent law was amended in 1977 to require that

"[a] standard statement, prepared by the chief administrator,

shall be read by the police officer to the person under arrest"

to inform him or her of the consequences of refusing to submit

to a breath test. N.J.S.A. 39:4-50.2(e). In 2009, the

responsibility for the promulgation of that statement was

transferred to the Attorney General. 41 N.J.R. 2825(a). Our

Supreme Court has explained that "the refusal statute requires

officers to request motor vehicle operators to submit to a

breath test; the implied consent statute tells officers how to

make that request." Marquez, supra, 202 N.J. at 501. Marquez

also identified the elements of a refusal conviction:

(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.

[Id. at 503 (citations omitted).]

5 A-2186-13T4
Pursuant to the implied consent law, N.J.S.A. 39:4-50.2(e),

the Attorney General's current standard statement (revised and

effective July 1, 2012), to be read to motor vehicle operators

to inform them of the consequences of refusing to submit to a

breath test, provides, in pertinent part:

5. If you refuse to provide samples of
your breath, you will be issued a
separate summons for the refusal. A
court may find you guilty of both
refusal and driving while intoxicated.

6. If a court finds you guilty of the
refusal, you will be subject to various
penalties, including license revocation
of up to 20 years, a fine of up to
$2000, installation of an ignition
interlock, and referral to an
Intoxicated Driver Resource Center.
These penalties may be in addition to
penalties imposed by the court for any
other offense of which you are found
guilty.

Defendant contends that the Attorney General's standard

statement is defective because it does not inform motorists of

the mandatory minimum penalties. In particular, defendant

argues that the standard statement "does not adequately explain

and delineate the penalties for a refusal conviction" because

the statement explains the license loss exposure as "license

revocation of up to 20 years." This is problematic, defendant

argues, because "defendant was not told that she would face a

6 A-2186-13T4
license loss for a minimum of seven months" and that "up to 20

years can mean anywhere between 0 days to 20 years." Similarly,

defendant argues that the standard statement is flawed because

it explains that defendant will be subject to "a fine of up to

$2000" while failing to mention that a defendant's first refusal

offense is "not less than $300 or more than $500 for a first

offense." See N.J.S.A. 39:4-50.4a. The statement is similarly

flawed, defendant continues, because it merely mentions the

"installation of an ignition interlock," while the refusal

statute mandates an ignition interlock for a first offender for

"not less than six months or more than one year." See N.J.S.A.

39:4-50.17(a)(1).

Our Supreme Court has previously recognized that "as a

question of law, the authority to define the contents of the

Standard Statement vests in the Executive Branch, as delegated

by the Legislative Branch." State v. Schmidt, 206 N.J. 71, 87

(2011); see also Marquez, supra, 202 N.J. at 511 ("The executive

branch, and not the courts, is best-equipped to respond to those

concerns and still satisfy the statutory command to inform

. . . motorists of the consequences of refus[al] . . . .

We defer to the executive branch agency . . . to fashion a proper

remedy . . . .") (internal quotation marks and citation omitted).

7 A-2186-13T4
Recently the issue of whether the standard statement was

defective, "because it does not inform drivers of the mandatory

minimum period of time their license will be suspended if they

refuse," was brought to our Court's attention. O'Driscoll,

supra, 215 N.J. at 480. However, because this issue was raised

by an amicus curiae, the Court in its discretion "[did] not

opine in any way on the content of the current statement." Id.

at 479-80. O'Driscoll, however, still can illuminate the

current issues and provide some guidance with respect to the

standard statement at issue.

In O'Driscoll, our Court reinstated a DWI defendant's

refusal conviction after determining that the misinformation

provided to him was inconsequential and consisted of minor

discrepancies that were not material to the defendant's decision

to refuse the breath test. Id. at 479-80. In particular, the

police officer mistakenly read from an outdated form and told

the defendant that if he refused, the minimum period of license

revocation was six months, not seven; the minimum fine was $250,

not $300; and the maximum fine was $1000, not $2000. Id. at

465. The officer, however, did correctly tell defendant that

his license could be revoked for up to twenty years. Ibid. The

Court held that the officer's mistakes were inconsequential, and

that the officer informed defendant "of the consequences of

8 A-2186-13T4
refusal in a manner that should have impelled a reasonable

person to comply." Id. at 479. In particular, the Court

continued, it was "difficult to see how the minor discrepancies

in this case could have influenced [defendant's] decision."

Ibid. As such, "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." Id. at 466.

With this guidance, we agree with Judge Caulfield that the

standard statement is sufficient, and we affirm defendant's

refusal conviction. Defendant's argument that she was not given

an accurate picture of the penalties she faced as a first-time

offender lacks merit. Rather, as Judge Caulfield observed:

It defies logic to assume that defendant[,]
having refused a breath test knowing that
she could be fined up to $2,000 and lose her
license for 20 years[,] would have submitted
to a . . . breath test, if she was told her
license might be revoked for only seven
months with a fine of only $500.

We are satisfied that the current standard statement satisfies

the statutory mandate — that is, informing motorists and

impelling compliance — by adequately informing drivers of the

maximum potential license revocation and fine, and the

possibility of ignition interlock, that they face for refusal.

9 A-2186-13T4
In so ruling, we note that adding other details, including the

differing mandatory minimum and maximum penalties for first

offenders, second offenders, and certain third offenders, may

run the risk of submerging the most significant penalties in

those details. Such a statement could confuse persons who are

suspected of being under the influence, whose number of prior

offenses may be unclear, and dilute the persuasive effect that

is a central purpose of the standard statement.

Moreover, defendant, having refused after being informed of

the maximum penalties, has not shown that she "reasonably would

have made a different choice and submitted to a breath test" had

additional information been provided. O'Driscoll, supra, 215

N.J. at 466. It is implausible that defendant would have

submitted to the breath test if informed of mandatory minimums

for a first offender. Accordingly, we conclude that the current

standard statement is not defective for failing to inform

drivers of the mandatory minimum penalties for refusal. The

standard statement provides sufficient information for drivers

to make an objectively reasonable choice on whether to submit to

a breath test.

Affirmed.

10 A-2186-13T4