STATE OF NEW JERSEY VS. ELIZABETH SILVAÂ (16-005, MONMOUTH COUNTY AND STATEWIDE), A-4540-15T3

Background

Elizabeth Silva previously pled guilty in 2011 to DWI and refusal to submit to a breath test; that conviction was reversed and remanded on appeal.
After motions to recuse the municipal judge were denied, Silva, with counsel, pled guilty on December 16, 2015 to refusal; other charges (including DWI) were dismissed.
At the plea colloquy Silva acknowledged she was satisfied with counsel, had been arrested after officers observed impairment, and had been read the Standard Statement.
Silva admitted she made seven attempts to provide breath samples, none of which produced two valid samples as reflected on the Alcohol Influence Report (AIR), which was admitted as a joint exhibit.
The municipal court accepted the plea, finding a sufficient factual basis and that the plea was knowing and voluntary; Silva was sentenced to statutory license suspension, interlock, and related penalties with credit for time previously served.
The Law Division affirmed after de novo review; Silva appealed to the Appellate Division, which also affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the plea colloquy supplied a factual basis for conviction of refusal to submit to breath test	Silva's allocution (admitting seven unsuccessful breath attempts) plus AIR and officer testimony establish the statutory elements for refusal	Plea colloquy failed to satisfy element that officer requested a breath test and informed Silva of consequences; prior allocutions/testimony improperly relied upon	Affirmed: Silva's own admissions and documentary and supplemental testimony provided an adequate factual basis for refusal conviction
Whether the plea was knowing and voluntary	Court and prosecutor: plea was entered knowingly and voluntarily; counsel present and defendant satisfied with representation	Silva: plea proceeding improper and not sufficiently protective of rights	Affirmed: court found plea knowing, intelligent, voluntary after full colloquy
Whether reliance on earlier plea allocution or procedural history invalidated the plea	State: prior statements and records (AIR) could be used to establish factual basis	Silva: court improperly relied on prior allocution and procedural record from earlier proceedings	Rejected: magistrate/municipal court permissibly reviewed earlier allocution and contemporaneous AIR as part of factual basis
Whether statutory requirements for a "refusal" were met given repeated unsuccessful blows	State: two valid samples required; multiple unsuccessful attempts showing no valid samples satisfy refusal element	Silva: unsuccessful samples do not prove a statutory refusal absent proof officer requested test and warned of consequences	Held: element of request/warning satisfied by Standard Statement and testimony; failure to produce two valid samples satisfies refusal under Chun and Marquez

Key Cases Cited

State v. Kovack, 91 N.J. 476 (recitation of judge's obligation to establish factual basis for pleas)
State v. Simon, 161 N.J. 416 (plea requirements and inquiry)
State v. Barboza, 115 N.J. 415 (guilty plea standards)
State v. Howard, 110 N.J. 113 (plea colloquy obligations)
State v. Sainz, 107 N.J. 283 (need for defendant admission or acknowledgment of facts constituting elements)
State v. Widmaier, 157 N.J. 475 (refusal prosecutions under Implied Consent Law)
State v. Marquez, 202 N.J. 485 (elements required to sustain refusal conviction)
State v. Cummings, 184 N.J. 84 (state must prove refusal elements beyond reasonable doubt)
State v. Chun, 194 N.J. 54 (requirements for valid breath samples and definition of valid sample)