State v. Pandoli
| Decision Date | 13 February 1970 |
| Citation | 262 A.2d 41,109 N.J.Super. 1 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Ronald M. PANDOLI, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
John W. O'Mara, Eatontown, for appellant (Saling, Boglioli & Moore, Eatontown, attorneys).
Thaddeus C. Raczkowski, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).
Before Judges CONFORD, COLLESTER and KOLOVSKY.
Defendant was subjected to a six-month revocation of his driver's license by the Director of the Division of Motor Vehicles after she concurred in a report by a hearing officer that defendant had refused to take an alcohol breath (drunkometer) test after arrest by a police officer upon reasonable grounds to believe defendant had been operating a motor vehicle while under the influence of intoxicating liquors. N.J.S.A. 39:4--50.4.
Defendant first contends the proofs before the hearing officer did not justify the conclusion that he had refused to take the drunkometer test. We disagree. The defendant flatly refused the request by the arresting officer that he take the test. This was after the officer read him the standard form which advises the motorist of the consequences of a refusal (possible six-month revocation). When brought before the officer in charge of administration of the test, who urged him to take it, defendant, to quote his own testimony: '* * * told him if I had to take it, I would, but first I'd like to call an attorney' The upshot was that he did not take the test.
Defendant contends the foregoing facts did not constitute a 'flat refusal' to take the test, and that only a refusal of that description can incept a valid revocation under the statute. Defendant cites Sidler v. Strelecki, 98 N.J.Super. 530, 237 A.2d 903 (App.Div.1968), but the case does not so hold. The refusal there was in fact a 'flat' one, and the court had no occasion to consider a qualified agreement, which is the case here.
In our view, the Director was justified in finding defendant had refused to take the test. She obviously felt defendant was not merely, as he argues, expressing a preference for, but rather an insistence upon, seeing an attorney before taking the test. We think the reasonable implication of his statement was that if so advised by an attorney he might not take the test. As a matter of law, defendant had no right to have the advice of an attorney before determining whether he would accede to the test, insofar as the sanction of revocation for refusal is concerned. See State v. Kenderski, 99 N.J.Super. 224, 229--230, 239 A.2d 249 (App.Div.1968); Ent v. State, Department of Motor...
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...177 (1974); Rusho v. Johns, 186 Neb. 131, 181 N.W.2d 448 (1970); Harlan v. State, 113 N.H. 194, 308 A.2d 856 (1973); State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41 (1970); Story v. Hults, 19 N.Y.2d 936, 281 N.Y.S.2d 342, 228 N.E.2d 398 (1967); Finocchairo v. Kelly, 11 N.Y.2d 58, 226 N.Y.S.......
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...joining in, if I were convinced that it was the proper direction to take, but I am not so convinced. The Court in State v. Pandoli, 109 N.J.Super. 1, 262 A.2d 41, 42 (1970), concluded that a driver "had no right to have the advice of an attorney before determining whether he would accede to......
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