State v. DeLorenzo

• Decision Date: 05 May 1986
• Citation: 210 N.J.Super. 100,509 A.2d 238
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. George DeLORENZO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 100

210 N.J.Super. 100

509 A.2d 238

STATE of New Jersey, Plaintiff-Respondent, v. George DeLORENZO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 17, 1986.

Decided May 5, 1986.

Barry T. Albin, Woodbridge, for defendant-appellant (Wilentz, Goldman & Spitzer, Woodbridge, attorneys, Barry T. Albin and James E. Trabilsy, Woodbridge, on brief).

James W. Kennedy, Asst. Prosecutor, for plaintiff-respondent (John A. Kaye, Monmouth County Prosecutor, attorney).

Before Judges PETRELLA, COHEN and SKILLMAN.

The opinion of the court was delivered by

SKILLMAN, J.S.C., temporarily assigned.

This is an appeal from a judgment of conviction for driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50. Defendant entered a conditional plea of guilty pursuant to R. 3:9-3(f) in the Colts Neck Municipal Court after adverse rulings on several pretrial motions. The municipal court imposed a six-month license suspension, a fine of $250, a surcharge of $100 and a requirement of twelve hours attendance at the Intoxicated Driver Resource Center. The same sentence was imposed on appeal by the Law Division. The only argument raised on appeal to this court is that defendant had a constitutional right to consult an attorney before deciding whether to submit to a breathalyzer test and that his conviction, which was based partly on the results of two tests, should therefore be set aside. We reject this argument and affirm.

The case was heard in the Colts Neck Municipal Court and on appeal in the Law Division on stipulated facts which may be briefly summarized. Defendant was first observed driving in excess of the speed limit. When apprehended for this offense his behavior indicated that he might be under the influence of alcohol. He was placed under arrest and requested to take the breathalzyer test. Defendant agreed to take the test, which produced readings well in excess of 0.10 blood alcohol concentration. The parties' stipulation does not indicate that defendant requested to consult with an attorney before submitting to the breathalzyer test or that he had an attorney who would have been available to speak to him.

The Implied Consent Law imposes an affirmative legal obligation upon a driver arrested for driving while under the influence to submit to a breath test. N.J.S.A. 39:4-50.2(a) provides:

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; provided, however, that the taking of samples is made in accordance with the provisions of this act and 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 the provisions of R.S. 39:4-50.

However, N.J.S.A. 39:4-50.2(e) prohibits police from using physical force to compel a driver to comply with the legal obligation to submit to a breath test:

No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test....

Therefore, the only "choice" afforded a driver alleged to have been driving under the influence is whether to comply with the law or to violate it. As the court stated in State v. Macuk, 57 N.J. 1, 15, 268 A.2d 1 (1970):

There is no legal right or choice to refuse, despite the authorized additional penalty for refusal in the case of the breath test. So it is inappropriate to warn that a test need not be taken, although it is quite fair to advise of the consequences of refusal to take a breath test.

Indeed, the only reason N.J.S.A. 39:4-50.2 requires a driver's consent to take a breathalyzer test is because that test "requires the affirmative cooperation of the subject who must 'blow up' the balloon." State v. Woomer, 196 N.J. Super. 583 585-586, 483 A.2d 837 (App.Div.1984). Furthermore, if a driver does not agree to provide a breath sample, a blood sample may be taken involuntarily. Id. at 586, 483 A.2d at 837. Within this statutory framework, the courts of this State have repeatedly held that a driver accused of driving while under the influence of alcohol has no right to consult an attorney before determining whether to comply with the legal obligation to submit to a breathalyzer test. See, e.g., State v. Macuk, supra, 57 N.J. at 15, 268 A.2d at 1; State v. Pandoli, 109 N.J.Super. 1, 3-4, 262 A.2d 41 (App.Div.1970); State v. Kenderski, 99 N.J.Super. 224, 230, 239 A.2d 249 (App.Div.1968).

Defendant urges us to reconsider the holding of these cases in light of recent decisions of the Supreme Court of the United States addressing the right to counsel in other contexts and decisions in other jurisdictions dealing with this issue. The short answer to defendant's arguments is that State v. Macuk is a holding of our State's highest court directly contrary to defendant's position, and is binding upon us in the absence of a later decision by the Supreme Court of the United States dealing with the same issue. In any event, we are satisfied that defendant's arguments lack merit.

Defendant relies upon Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), which held that Miranda warnings must be given to a person suspected of a traffic offense before he can be subjected to custodial interrogation. However, the taking of a breath sample is nontestimonial. ¹ State v. Macuk, supra, 57 N.J. at 13-15, 268 A.2d at 1. Furthermore, a simple request to submit to a chemical test does not constitute interrogation. South Dakota v. Neville, 459 U.S. 553, 564, n. 15, 103 S.Ct. 916, 922, n. 15, 74 L.Ed.2d 748 (1983). Therefore Berkemer and Miranda are inapplicable. ²

Defendant also argues, relying upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that the decision whether to submit to a breathalyzer test is a "critical stage" in a criminal prosecution and that he therefore had a right to consult with counsel in making that decision. However, the Court in Wade expressly stated that the scientific analysis of a blood sample is not a critical stage in a criminal prosecution at which the accused has a Sixth Amendment right to the presence of counsel. Id. at 227, 87 S.Ct. at 1932; see also Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) (taking of handwriting sample is not a "critical stage" requiring presence of counsel). Furthermore, since the sentence imposed on defendant did not include a term of imprisonment, he did not have a Sixth Amendment right to counsel even at trial. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). ³

Defendant makes the further argument that the right to consult with counsel is protected by the Due Process Clause of the Fourteenth Amendment, citing a number of decisions from other jurisdictions in support of this proposition. See, e.g., Sites v. State, 300 Md. 702, 481 A.2d 192 (Ct.App.1984); State v. Newton, 291 Or. 788, 636 P.2d 393 (Sup.Ct.1981); People v Gursey, 22 N.Y.2d 224, 239 N.E.2d 351, 292 N.Y.S.2d 416 (Ct.App.1968). These cases generally proceed on the premise that a driver has a right as a matter of...