STATE OF NEW JERSEY VS. DENISE R. FLAHERTY (18-8, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0826-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENISE R. FLAHERTY,

Defendant-Appellant.
___________________________

Submitted October 23, 2019 — Decided November 13, 2019

Before Judges Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Municipal Appeal No. 18-
8.

Trinity & Farsiou, LLC, attorneys for appellant (Steven
D. Farsiou, on the briefs).

Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren E. Bland, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 On September 8, 2017, Branchburg police officers charged defendant with

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

test (refusal), N.J.S.A. 39:4-50.4a; obstructed view, N.J.S.A. 39:3-74; and

improper turn, N.J.S.A. 39:4-126. On May 8, 2018, defendant entered guilty

pleas to DWI and refusal, conditioned upon her right to challenge on appeal the

sufficiency of the standard statement police officers are required to read to motor

vehicle operators arrested for DWI to inform them of the consequences of

refusing to submit to a breath test.

During her plea allocution, defendant admitted that before operating a

motor vehicle on the date in question, she consumed alcoholic beverages , which

impaired her ability to drive. She also refused to provide a breath sample at the

police station after being read the standard statement by the arresting officer.

Additionally, defendant testified this was her first offense, and had the standard

statement informed her of the mandatory minimums for a first time offender,

she would have provided the breath samples. 1

1
As a first time offender whose violation did not occur "on or within 1,000 feet
of any school property or while driving through a school crossing[,]" in addition
to other sanctions, defendant was subject to driver's license revocation "for not
less than seven months or more than one year . . . ." N.J.S.A. 39:4-50.4a.

A-0826-18T4
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 The municipal court judge accepted defendant's guilty pleas, suspended

defendant's driver's license for an aggregate term of seven-months,2 imposed a

series of mandatory monetary fines and penalties, directed her to install an

ignition interlock device on her car for six months, and ordered her to serve

twelve hours in the Intoxicated Driver Resource Center (IDRC). The municipal

court judge also dismissed the remaining charges and stayed the execution of

the sentence pending appeal to the Law Division, pursuant to Rule 7:13-2.

Defendant argued her de novo appeal in the Law Division on September

19, 2018. After reviewing the record developed before the municipal court and

considering the arguments of counsel, on September 24, 2018, the Law Division

judge denied defendant's motion to dismiss the refusal charge based on the

sufficiency of the standard statement and continued the "stay on the penalty

pending further appeal."

Defendant now appeals from the September 24, 2018 Law Division order,

raising the following arguments for our consideration:

I.[3] THE LOWER COURT ERRED IN HOLDING
THAT THE STANDARD STATEMENT

2
The judge imposed a ninety-day driver's license suspension on the DWI, and
a concurrent seven-month driver's license suspension on the refusal.
3
We have eliminated the point heading describing the standard of review and
renumbered the remaining points accordingly.
A-0826-18T4
3
 SUFFICIENTLY PROVIDES A DRIVER WITH ALL
OF THE CONSEQUENCES OF REFUSING TO
PROVIDE A BREATH SAMPLE AS REQUIRED
PURSUANT TO N.J.S.A. 39:4-50.2(E).

II. THE COURT ERRED IN HOLDING THAT THE
MANDATORY MINIMUMS FOR A REFUSAL
WERE NOT NECESSARY FOR INCLUSION ON
THE [STANDARD] STATEMENT BECAUSE A
REASONABLE PERSON WOULD UNDERSTAND
THE SERIOUS CONSEQUENCES OF DRUNK
DRIVING AS IT DIRECTLY [CONTRADICTS] THE
LANGUAGE OF THE STANDARD STATEMENT.

III. THE LOWER COURT ERRED WHEN IT HELD
THAT THE CURRENT STANDARD STATEMENT
SATISFIES THE STATUTORY REQUIREMENT OF
SETTING FORTH THE CONSEQUENCES OF
REFUSING AS IT MISINFORMS A DRIVER THAT
THERE ARE NO MANDATORY MINIMUM
PENALTIES FOR REFUSING, THEREBY
INCREASING THE LIKELIHOOD OF REFUSALS
IN DIRECT CONTRAVENTION OF THE VERY
PURPOSE OF READING THE FORM.

We reject these arguments and affirm.

Pertinent to this appeal, the Law Division judge recounted the following

undisputed facts:

When [d]efendant was arrested and brought to
police headquarters for processing, the arresting officer
observed her for [twenty] minutes. She was then read
the New Jersey Attorney General's Standard Statement
for Breath Testing . . . by Branchburg Police intended
to inform her of the consequences of refusing to submit
breath samples. The statement reads in relevant part:

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 If the [c]ourt finds you guilty of the refusal,
you will be subject to various penalties,
including license revocation of up to
[twenty] years, a fine of up to $2000,
installation of an ignition interlock device,
and referral to an [IDRC]. These penalties
may be in addition to penalties imposed by
the [c]ourt for any other offense of which
you are found guilty. . . .

Defendant refused to provide a breath sample after
being read the statement.

The judge posited that "[t]he issue raised by the [d]efense is that the

[s]tatement as written failed to adequately inform [d]efendant of the

consequences of refusing the test because the [s]tatement did not include the

minimum penalties or a gradation of penalties." Analogizing the circumstances

to "a plea alloc[u]tion" where "the [c]ourt voir dires the [d]efendant" on his or

her "understand[ing]" of "the potential maximum penalty," the judge "fail[ed]

to see how knowledge of the minimum penalties" or "knowledge of a gradation

of penalties would alter [d]efendant's decision to refuse the test."

Further, the judge noted "[i]t would be overly burdensome . . . to impose

a requirement [for] a list of all the potential sentencings and gradations for each

offense" because "the potential minimum sentencing and all the gradations of

the offense could be vastly different depending upon a [d]efendant's prior

record." Additionally, the judge refuted defendant's contention "that these

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maximum penalties are misleading because they are 'almost legally impossible,'"

explaining, "these penalties could be imposed." See N.J.S.A. 39:4-50.4a(b).

Finally, the judge rejected defendant's argument "that the language of the

[s]tatement would lead a reasonable person to think that they could only receive

a single day of license suspension and no fine . . . considering the seriousness of

drunk driving and the increased penalties imposed by the Legislature."

The judge concluded "the [s]tatement served to inform [d]efendant of the

consequences of refusing the test" by "accurately inform[ing] [d]efendant of the

maximum penalties she was subject to had she refused the test." Thus,

"[d]efendant . . . was fully informed of the . . . consequences of refusal[,]" and

"[t]he standard [s]tatement read to [d]efendant . . . clearly fulfill[ed] the

Legislative intent that [d]efendant be informed of the mandatory nature of the

test in such a way as to impel compliance with the test." This appeal followed.

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

which are generally entitled to our deference." State v. Quintero, 443 N.J.

Super. 620, 623-24 (App. Div. 2016) (citing 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." Id. at 624. "Where, as here, the issues

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turn on purely legal interpretations, our review is plenary." Ibid. (citing State

v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011)).

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

havoc and destruction caused by intoxicated drivers.'" Ibid. (quoting State v.

Marquez, 202 N.J. 485, 496 (2010)). To that end, the implied consent law,

N.J.S.A. 39:4-50.2, and the refusal law, N.J.S.A. 39:4-50.4a, were enacted "[t]o

improve enforcement efforts and address the high rate of refusal by motorists

who decline[] to submit to blood-alcohol tests[.]" State v. O'Driscoll, 215 N.J.

461, 472-73 (2013).

Under the implied consent law,

Any person who operates a motor vehicle on any public
road, street or highway or quasi-public area in this State
shall be deemed to have given his consent to the taking
of samples of his breath for the purpose of making
chemical tests to determine the content of alcohol in his
blood; . . . at the request of a police officer who has
reasonable grounds to believe that such person has been
operating a motor vehicle in violation of [N.J.S.A.
39:4-50] . . . .

[N.J.S.A. 39:4-50.2(a).]

"The police officer shall . . . inform the person arrested of the consequences of

refusing to submit to such test" and "[a] standard statement, prepared by the

chief administrator, shall be read by the police officer to the person under

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arrest." N.J.S.A. 39:4-50.2(e). In 2009, the responsibility for the promulgation

of the standard statement was transferred to the Attorney General. 41 N.J.R.

2825(a) (Aug. 3, 2009).

In tandem, the refusal statute requires police officers to request motor

vehicle operators to submit to a breath test, or be charged with a violation upon

their refusal. To sustain a refusal conviction under the statute, four elements

must be established:

(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.

[Marquez, 202 N.J. at 503 (citing N.J.S.A. 39:4-
50.2(e); N.J.S.A. 39:4-50.4a).]

Currently, the standard statement required 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.

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

[Attorney General's Standard Statement (revised and
effective July 1, 2012).]

Here, it is undisputed that defendant was read the current standard

statement. Nonetheless, defendant renews her arguments challenging the

sufficiency of the statement, which were entirely rejected by the Law Division

judge. In Quintero, we also rejected the identical contentions, stating:

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 [the Law Division
judge] observed:

It defies logic to assume that defendant[,]
having refused a breath test knowing that
she could be fined up to [$2000] and lose
her license for [twenty] 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

A-0826-18T4
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 ignition interlock, that they face for refusal. 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, 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.

[Id. at 627-28.]

Here, the fact that defendant testified during her plea allocution that she

would have provided a breath sample had she been informed of the mandatory

minimums for a first time offender does not dictate a different result, or

demonstrate that "she 'reasonably would have made a different choice and

submitted to a breath test' had additional information been provided." Ibid.

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(quoting O'Driscoll, 215 N.J. at 466). If "[a]n immaterial variation from the

standard form does not require reversal of a conviction for refusal[,]" then

certainly an accurate reading of the form as occurred here suffices to sustain a

refusal conviction. O'Driscoll, 215 N.J. at 466.

Affirmed.

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