NOT FOR PUBLICATION WITHOUT THE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-2506-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JANET E. COYLE,
Defendant-Appellant.
__________________________
Submitted February 25, 2019 – Decided April 12, 2019
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Municipal Appeal No.
27-17.
Albert P. Mollo, attorney for appellant.
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant Janet Coyle was
convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a; and failure
to maintain a lane, N.J.S.A. 39:4-88(b). She was acquitted of driving while
intoxicated (DWI), N.J.S.A. 39:4-50; and reckless driving, N.J.S.A. 39:4-96.
She appeals from her refusal conviction, 1 raising the following single argument
for our consideration:
POINT I: [DEFENDANT] IS NOT GUILTY OF
REFUSAL.
In support, she argues that her hearing impairment prevented her from hearing
the officer's request to submit a breath sample or his explanation of the
consequences of her refusal. We affirm.
1
In order to obtain a conviction for refusal, the State must establish the
following four elements beyond a reasonable doubt:
(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.
[State v. Marquez, 202 N.J. 485, 503 (2010) (citing
N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:4-50.4a(a); State v.
Wright, 107 N.J. 488, 490 (1987)).]
A-2506-17T3
2
The evidence presented at trial revealed that on September 21, 2016, at
approximately 9:18 p.m., Evesham Township Sergeant Justin Graff conducted a
motor vehicle stop of defendant's vehicle after observing various motor vehicle
violations. Upon requesting her driving credentials, Graff noticed that
defendant, then seventy-four years old, had "blood[shot]" and "watery" eyes.
He also "detect[ed] an odor of . . . alcoholic beverage coming from inside of the
vehicle," prompting him to ask defendant if she had consumed any alcohol prior
to operating the vehicle. Defendant admitted "that she had a glass of wine at
dinner at TGI Fridays[,]"2 and Graff noted that defendant's speech was "slow
and slurred."
Based on these observations, Graff administered field sobriety tests,
which defendant was unable to perform. Prior to each test, Graff provided
defendant with complete verbal instructions along with a demonstration of the
test. According to Graff, at no point did defendant give him any indication that
she was having trouble hearing him. When Graff inquired whether she had any
injuries that would limit her ability to perform the tests, defendant responded
2
Defendant later testified she had "two glasses of white wine" at dinner.
Additionally, while she informed Graff she had consumed these glasses within
a two-hour span, she testified she was at dinner for approximately four hours.
A-2506-17T3
3
"that she had some arthritis" in "her left foot." The entire encounter was
recorded on Graff's mobile video recorder (MVR), which was played in court
during the trial.
Defendant was arrested for DWI, read her Miranda3 rights at the scene,
and transported to the police station. At the police station, Graff read defendant,
in its entirety, the New Jersey Attorney General's Standard Statement for Motor
Vehicle Operators (standard statement), 4 advising her that she was required to
submit breath samples for testing to determine alcohol content and would be
issued a separate summons if she refused. When Graff asked if "she was willing
to submit to the Alcotest . . . for breath testing," defendant replied that she
wanted an attorney. Graff "immediately read [defendant] the second paragraph"
of the standard statement, advising defendant that answering with anything other
than "a yes or no answer" would require him to charge her with refusal.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
The standard statement advises the DWI suspect that he or she has been
arrested for DWI; the law requires the submission of breath samples to test for
alcohol content; a record of the test will be made; subsequent independent
testing may be conducted at the suspect's expense; refusing to provide breath
samples will result in the issuance of a separate summons for refusal; there are
penalties for refusal; there is no legal right to have an attorney or physician or
anyone else present, and no legal right to refuse to give or delay giving samples;
and any ambiguous or conditional response will be treated as a refusal.
A-2506-17T3
4
Defendant again responded that she "want[ed] to talk to an attorney." Based
upon defendant's responses, Graff issued defendant a motor vehicle summons
for refusal to submit to a breath test 5 as well as other summonses.
Defendant testified that her "hearing impairment" prevented her from
hearing "when [Graff] was reading all those things," but admitted she had no
trouble hearing Graff and answering his questions when he initially spoke to her
through the car window. She explained that she has "to wear . . . hearing aids"
but was not wearing them when she was stopped because she had removed them
in the restaurant due to "background noise." However, she acknowledged that
she failed to inform Graff "that [she] was hearing impaired" or that she normally
used hearing aids but did not have them on that night. She attributed her
omission to the stress of the encounter.
Defendant testified further that she "never said no to a [b]reathalyzer," but
instead only "ask[ed] for an attorney." She explained that she was
"overwhelmed" and "confused about the [Miranda] rights being read to [her]" in
relation to the standard statement because "nothing like this ha[d] ever happened
5
At trial, the standard statement read to defendant and her recorded responses
were admitted into evidence. When defendant was first asked to submit breath
samples, her recorded response was, "[I'd] like an attorney[.]" When she was
asked the second time, her recorded response was, "I can't talk to an attorney[?]"
A-2506-17T3
5
to [her]" and "this was all new to [her.]" According to defendant, when Graff
first asked her to submit a breath sample,
the thing I can best remember . . . is I was read my
[Miranda] rights . . . right before he read that list of
things . . . so I thought, . . . that's good because I'm so
confused at this point and I thought it was saying that I
was entitled to an attorney.
So . . . I said to [the officer] well, can I have an
attorney . . . .
. . . I was confused about the [Miranda] rights
being read to me . . . .
....
. . . [H]e was reading me these things quickly and
all that was sticking in my mind is . . . you can have an
attorney to help you . . . .
Additionally, because she was in the process of "renewing" her "clinical
license," she thought it would be "helpful if [she] could just talk to an attorney."
To support her defense, defendant presented expert testimony from Dr.
Elizabeth Patterson, a doctor of audiology, who had been treating defendant
since 2015 and diagnosed her with "moderate to severe sensorineural hearing
loss," requiring defendant to wear "bilateral hearing aids to help compensate for
that deficit." Dr. Patterson explained that defendant's condition made it
"significant[ly] difficult[] [to] understand[] speech, especially . . . consonants [.]"
A-2506-17T3
6
She also stated that in recent testing, defendant "only understood [thirty-six]
percent of . . . the standardized test words" presented "in a quiet situation[],"
which "validate[d] the difficulty that [defendant was] having . . . when people
talk at normal conversational levels." Dr. Patterson explained further that there
are "cognitive strategies" employed "to compensate for the deficits in
understanding[,]" which "require energy[,] . . . attention[,] and focus," all of
which are compromised in "stressful situations" and would further reduce "that
[thirty-six] percent understanding."
Immediately following the trial, the municipal court judge rendered an
oral opinion, finding defendant guilty of all the charges based on the "totality of
the circumstances." Regarding the refusal, the judge explained:
[D]efendant said that she was confused because she had
just been read the [Miranda] rights and then went into
the refusal statement -- not really.
The [Miranda] was read back at the scene, the
refusal was read in the station. It wasn't [Miranda] read
and then refusal, and I think the confusion with regard
to those is because she was impaired and she started to
get nervous about her certification, . . . and I think that
it all came together and she just said I want an attorney.
But then she's informed you don't have the right
to do that at this stage, your answer is yes or no, will
you submit. And then instead of saying yes or no, again
she asks so I can't ask for a lawyer now? . . . .
A-2506-17T3
7
. . . I do find that she . . . heard and understood
[the directions] because that's why she would be asking
a question about it, because she heard what he said.
He said answer yes or no and that's why she's --
wait, now I can't have an attorney? Because I've heard
what you said. So again, I don't find that anybody is
being misleading, I don't find that anybody is not telling
the truth and she may have arthritis and she has a
hearing loss.
I just don't find that that's why she was driving in
the center of the road, nor do I find that that's why she
wasn't following directions, nor do I find that that's why
she didn't take the Alcotest.
On appeal de novo, the Law Division judge made independent findings of
fact and conclusions of law based on the record and gave deference to the
municipal judge's credibility determinations. After weighing the evidence "de
novo[,]" the judge had reasonable doubt as to the DWI charge. However, he
found "[t]he police officer . . . had probable cause . . . to believe that . . .
defendant may be operating a motor vehicle under the influence of alcohol," and
arrested defendant for DWI, which triggered the requirement to "take a . . .
breath test if . . . asked to do so under these circumstances." Further, the judge
found beyond a reasonable doubt that defendant was read and understood the
standard statement, but gave a response that constituted a refusal under the
statute.
A-2506-17T3
8
The judge explained "[t]his is a person who has given me no evidence to
. . . suggest that she didn't understand that rather clear, unequivocal language
that you have to give a 'yes' or 'no[.]' You can refuse and you will be penalized[,]
or you must submit to the test." The judge pointed out that defendant gave no
"indication[]" that she did not hear the officer and "had no difficulty answering
the officer's questions," which "support[ed his] finding that she understood
him." According to the judge, "[t]here did not appear to be any communication
problems. She spoke clearly to him and understood the conversation between
the two of them[.]"
In distinguishing Marquez, the judge stated:
[T]his is not a Marquez case; this is not a Spanish or a
Polish or a Hungarian; this is a professional English-
speaking, licensed therapist . . . .
....
I don't buy the argument that . . . she didn't
understand. Even with the matching up with the
[Miranda], which was read earlier, . . . I don't find that
[defendant] had any kind[] of problems understanding
what she was required legally to do.
The judge imposed the requisite fines and penalties, as well as a seven-month
revocation of defendant's driving privileges, which the judge stayed for forty -
five days. This appeal followed.
A-2506-17T3
9
Our review of the trial court's factual findings is limited to whether the
conclusions of the Law Division judge "could reasonably have been reached on
sufficient[,] credible evidence present in the record." State v. Johnson, 42 N.J.
146, 162 (1964). Unlike the Law Division, we do not independently assess the
evidence. State v. Locurto, 157 N.J. 463, 471 (1999). The rule of deference is
more compelling where, as here, the municipal and Law Division judges made
concurrent findings. Id. at 474. "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." Ibid. "However, no such deference is owed to
the Law Division or the municipal court with respect to legal determinations or
conclusions reached on the basis of the facts." State v. Stas, 212 N.J. 37, 49
(2012).
Based upon these principles and our review of the record, we are satisfied
that the Law Division judge's finding of guilt could reasonably have been
reached on sufficient, credible evidence present in the record. Under the implied
consent statute, N.J.S.A. 39:4-50.2(a), each motorist using the public roads in
the State is deemed to have given consent to undergo a chemical test to
determine blood alcohol levels at the request of a police officer who has
A-2506-17T3
10
reasonable grounds to believe that a motorist has been operating a motor vehicle
while under the influence of alcohol. State v. Mulcahy, 107 N.J. 467, 474
(1987). A motorist who fails to submit to a breath test when requested to do so
will be charged with refusal under N.J.S.A. 39:4-50.4a, triggering a mandatory
suspension of the motorist's driving privileges.
A police officer's request to a motorist to submit to a breath test is
statutorily mandated. N.J.S.A. 39:4-50.2(e) provides 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]" and "[a] standard
statement . . . shall be read by the police officer to the person under arrest." The
Legislature authorized the standard statement as a procedural device to inform
motorists of "the mandatory nature of the [breath] test, their limited rights to
counsel for purposes of the test, and the need for unequivocal, affirmative
consent." State v. Widmaier, 157 N.J. 475, 489 (1999). Ultimately, "'anything
substantially short of an unconditional, unequivocal assent to an officer's
request' 'would undermine law enforcement's ability to remove intoxicated
drivers from the roadways' and impede their ability to conduct the test in a timely
manner to ensure that the results are meaningful." State v. Spell, 395 N.J. Super.
A-2506-17T3
11
337, 344 (App. Div. 2007) (quoting Widmaier, 157 N.J. at 497), aff'd as
modified, 196 N.J. 537 (2008).
Here, upon defendant's arrest for DWI, and after being advised of her
Miranda rights, Graff followed, to the letter, the proper procedures for informing
defendant of her obligation to submit to a breath test by reading, in its entirety,
the standard statement as required under N.J.S.A. 39:4-50.2(e). By responding
that she wanted an attorney and failing to heed Graff's warnings, defendant
failed to give the unequivocal consent required to avoid the proscription of the
refusal statute.
Defendant argues that she "should have no less protection under the law"
because of "a hearing impairment" than the Marquez defendant "who did not
understand because of a language barrier[,]" particularly when "there is an
abundance of evidence to demonstrate" that she "did not understand the request
to submit a breath sample or consequences related to her failure to do so ." In
Marquez, the Court held that a suspected drunk driver who did not speak English
was not "inform[ed] of the consequences of refusal" when the police officer read
the standard statement to the defendant in English. 202 N.J. at 514.
Here, as the Law Division judge concluded, Marquez is distinguishable
because there is substantial, credible evidence in the record that defendant heard
A-2506-17T3
12
and understood the clear and unequivocal language read to her from the standard
statement that any response other than a "yes" or a "no" constituted a refusal and
would result in the issuance of a separate summons. Indeed, defendant admitted
she had no trouble hearing Graff when he initially approached her vehicle. Had
the evidence supported her account that her hearing impairment prevented her
from "being informed" of the consequences of refusal, Marquez may have
applied by analogy.
Instead, the evidence showed that defendant was confused and wanted to
talk to an attorney, particularly regarding the impact of the arrest on her
professional license. However, "it is not necessary for the State to prove that a
driver actually understood the warnings on a subjective level." Id. at 513.
Indeed, "defendant's subjective intent is irrelevant in determining whether the
defendant's responses to the officer constitute a refusal to take the test" and
"voicing a mere 'preference' to have an attorney present, as defendant in the
instant case argues [s]he did, is a delay tactic that cannot be indulged."
Widmaier, 157 N.J. at 498. "If properly informed in a language they speak or
understand while sober, [as here,] drivers can be convicted under the implied
consent and refusal statutes." Marquez, 202 N.J. at 513.
Affirmed.
A-2506-17T3
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STATE OF NEW JERSEY VS. JANET E. COYLE (27-17, BURLINGTON COUNTY AND STATEWIDE)
Combined Opinion