NOT FOR PUBLICATION WITHOUT THE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-4540-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELIZABETH SILVA,
Defendant-Appellant.
__________________________________
Argued October 4, 2017 – Decided October 23, 2017
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 16-005.
Matthew W. Reisig argued the cause for
appellant (Reisig Criminal Defense & DWI Law,
LLC, attorneys; Mr. Reisig, on the brief).
Ian D. Brater, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Mr. Brater, of counsel and on the
brief).
PER CURIAM
Defendant Elizabeth M. Silva appeals from her conviction
after pleading guilty to refusal to submit to a breath test. On
appeal, Silva argues that the plea colloquy did not satisfy the
elements of the offense based upon her testimony, the plea
proceeding was improper, and the court erroneously relied upon a
prior plea allocution. Having carefully reviewed the record and
arguments raised on appeal, we affirm.
As we write for the parties and their respective counsel,
there is no need to recite the extensive prior procedural history
in detail. Suffice it to state that subsequent to Silva's original
conviction for driving while intoxicated (DWI) and for refusal to
submit to a breath test, after appeal to this court, we reversed
and remanded to the municipal court for trial. State v. Silva,
No. A-1011-13 (App. Div. March 19, 2015) (slip op. at 15).
On December 16, 2015, after Silva's motion to recuse the
municipal court judge who presided over her original plea was
denied and then upheld by the Law Division, she appeared before
that judge with counsel and pled guilty to refusal. The remaining
charges originally lodged against her, including the DWI, were
dismissed on motion of the prosecutor.
During the plea proceeding, Silva stated that she desired to
plead guilty and was entering her plea knowingly and voluntarily.
Silva also acknowledged that she was satisfied with her attorney's
representation.
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The court commenced the elicitation of the factual basis by
reviewing with Silva the factual basis she provided during her
October 2011 plea of guilty to the refusal, in which she admitted
under oath that she "did not take the breathalyzer test."
Silva's defense counsel then elicited the following testimony
from her relative to her guilty plea:
[Q.] Now, Ms. Silva, let me take you back
to July [30,] 2011. Do you have a
recollection of that date?
[A.] Yes.
[Q.] And you were arrested in the
driver's seat of a motor vehicle
[here in] Belmar when police came
upon, came upon you, is that
correct?
[A.] Correct.
[Q.] And the car was running, is that
correct?
[A.] Correct.
[Q.] And you agree that the officers —
And you had been at Bar A, correct?
[A.] Correct.
[Q.] And you told the officers that,
correct?
[A.] Correct.
[. . . .]
3 A-4540-15T3
[Q.] And the officers had you engage in
what we call Field Sobriety Testing,
do you remember that?
[A.] Yes.
[Q.] And do you remember that they also
had you stand heel to toe, and walk
heel to toe in a particular way, is
that correct?
[A.] Correct.
[Q.] And do you agree that based on the
observations that they made, as they
put it in their police reports,
based on the information you gave
them, that at that time they had
good reason to arrest you for the
purpose of continuing an
investigation as to whether or not
you were driving while under the
influence. Do you agree with that?
[A.] Uh huh.
[Q.] You have to say yes or no.
[A.] Yes.
[Q.] Okay. Now, you know we've discussed
that, but that's what we call the
factual element of probable cause to
arrest you for DWI. You understand
that, correct?
[A.] Correct.
[Q.] And the officers then brought you
back here to police headquarters, is
that right?
[A.] Right.
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[Q.] And an [o]fficer read to you a
document called a Standard
Statement. Do you understand?
[A.] Correct.
[Q.] And you and I have gone over that
Standard Statement, is that right?
[A.] That's right.
[. . . .]
[Q.] Let me show you that. This is the
document we've been referring to.
Is that right?
[A.] That's right.
[Q.] You and I have had a chance to go
over that and talk about that,
correct?
[A.] Correct.
[Q.] And you agree that — [n]ow, there's
two parts to this document. There's
a top part where it says, "The
arresting officer must read the
following to the defendant. Full
text of Standard Statement
follows." Do you see that section?
[A.] Yes.
[Q.] And you agree that the officer,
whoever it was, read you the
statements that are printed on the
top part of what we're going to
label as J-2. Do you understand
that?
[A.] I understand.
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[Q.] And then there's a place where an
answer has been inserted. Is that
correct?
[A.] Correct.
[Q.] And that answer was what?
[A.] That's fine.
[Q.] Those are your words, correct?
[A.] Correct.
[Q.] And then the officer proceeded to
have you submit breath samples, is
that correct?
[A.] Correct.
[. . . .]
[Q.] Now, Ms. Silva, you and I have had
a chance to review this document
that we've identified as J-1 many
times, isn't that right?
[A.] Right.
[Q.] You recognize this as the Alcohol
Influence Report Form, which is the
record of the attempts you made to
submit breath samples, is that
correct?
[A.] Correct.
[Q.] And as you look at J-1, you made how
many attempts to submit breath
samples?
[A.] Seven.
[Q.] And did the instrument accept those
samples? And you understand the
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instrument did not accept your
breath samples, is that right?
[A.] Right.
Following Silva's plea allocution, the court placed the
results of her attempts to submit breath samples, as indicated in
the Alcohol Influence Report (AIR), on the record. The AIR was
admitted into evidence as a joint exhibit.
The court then permitted the municipal prosecutor, with
comment but without objection by Silva's counsel, to supplement
her factual basis with testimony from the arresting officer and
testimony from the officer who administered the Alcotest. The
arresting officer's testimony was limited to Silva's operation of
the motor vehicle. The Alcotest officer testified as to Silva's
failed attempts to provide an adequate breath sample.
At the conclusion of the proceeding, the court accepted
Silva's guilty plea, finding that her plea was knowing,
intelligent, and voluntary. The court also found that the plea
was supported by "more that an adequate factual basis." Upon
review of the statutory elements for refusal, the court held that
the elements were satisfied by the testimonial and documentary
evidence. Silva was then sentenced to the required period of
license suspension, a period of utilization of an interlock device,
and related mandatory penalties. Credit was provided to Silva for
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each aspect of the sentence that she served as a result of her
prior plea and resultant sentence.
Silva filed an appeal to the Law Division seeking to vacate
her plea raising the same arguments now raised on appeal before
this court. After conducting a de novo hearing, Judge Anthony
Mellaci rejected Silva's arguments in a comprehensive, well-
reasoned oral opinion. The judge, among other findings, held that
there was no error in the plea proceedings and that Silva had
provided an adequate factual basis predicated upon her own
allocution. We agree and add only the following.
A guilty plea may not be entered by the trial court without
the judge first addressing defendant personally and determining
by inquiry of defendant and others, in the court's discretion,
that there is a factual basis for the plea and that the plea is
made voluntarily, with an understanding of the nature of the
charges and consequences of the plea. R. 3:9-2; State v. Kovack,
91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J. 416, 443
(1999); State v. Barboza, 115 N.J. 415, 420-21 (1989); State v.
Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107 N.J. 283,
292-93 (1987). The factual basis for a guilty plea must include
defendant's admission of guilt of the crime or the acknowledgment
of facts constituting the essential elements of the crime. Sainz,
supra, 107 N.J. at 293. "The need to establish a sufficient
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factual basis for a guilty plea is not obviated by the fact that
the plea is part of a negotiated plea agreement." Ibid.
Under New Jersey's Implied Consent Law, N.J.S.A. 39:4-50.2,
[a]ny 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[.]
Failure of a person to act in accordance with N.J.S.A. 39:4-50.2
can result in prosecution for refusing to submit to a breath test.
State v. Widmaier, 157 N.J. 475, 488-89 (1999). The purpose [of]
the statute is to encourage motorists suspected of driving under
the influence to submit to breath tests. Id. at 487 (citing State
v. Wright, 107 N.J. 488, 499 (1987)).
In State v. Marquez, 202 N.J. 485, 503 (2010), our Supreme
Court, in referencing the statutory factors needed to sustain a
refusal conviction, citing N.J.S.A. 39:4-50.2(e) and N.J.S.A.
39:4-50.4a(a), held:
(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.
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The State must prove these elements beyond a reasonable doubt.
State v. Cummings, 184 N.J. 84, 88 (2005). Only the third element
is at issue here.
Following Silva's assent to a breath test, she was required
to provide at least two "valid" breath samples. State v. Chun,
194 N.J. 54, 81, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172
L. Ed. 2d 41 (2008). To be "valid," a breath sample must meet the
following four criteria: (1) minimum volume of 1.5 liters; (2)
minimum blowing time of 4.5 seconds; (3) minimum flow rate of 2.5
liters per minute; and (4) that the [infrared] measurement reading
achieves a plateau (i.e., the breath alcohol does not differ by
more than one percent in .025 seconds). Id. at 97.
Here, Silva admitted that she gave seven breath samples yet
was unable to provide the requisite two valid samples. That
admission alone constituted an adequate basis that she refused to
take the test in satisfaction of Rule 7:6-2(a)(1).
Silva's remaining arguments, not specifically addressed
herein, lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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STATE OF NEW JERSEY VS. ELIZABETH SILVAÂ (16-005, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion