STATE OF NEW JERSEY VS. DANIELLE JAMARINO (17-07, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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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
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 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).
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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

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 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
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 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
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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
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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

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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

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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.
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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
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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-

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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.

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 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?
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 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.

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 [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

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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

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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.
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 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).
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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.

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