State v. CorradoState v. Corrado
Two appeals by defendant arise out of his convictions of drunk driving and other motor vehicle offenses. The first appeal challenges his convictions of various motor vehicle offenses in the municipal court. The second appeal is from the revocation of defendant‘s driving privileges by the Director of Motor Vehicles (Dirеctor) because of his initial refusal to take a breathalyzer test even though he subsequently attempted to cure that refusal by offering to take the test. We have consolidated both appeals on our own motion for purposes of dеcision.
On April 28, 1980 defendant was issued four summonses returnable in the Borough of Red Bank Municipal Court, alleging various violations of the motor vehicle laws arising out of two motor vehicle accidents which occurred within five minutes of each other on that date. Following a trial the municipal court judge found defendant guilty of careless driving (
Defendant appealed his convictions to the Law Division pursuant to R. 3:23-8(a) and was again found guilty of the three violations. However, the trial judge merged the sеntences for the convictions of careless driving and driving while under the influence of alcohol, imposing a $500 fine and $15 costs thereon and suspending defendant‘s license for one year. He further fined defendant $25 and imposed $15 costs for leaving the scеne of an accident. Defendant now appeals those convictions, alleging that the trial judge erred in his determinations of guilt as to each offense. He also appeals directly to this court from the administrative determination by the Director of the Division of Motor Vehicles revoking his driving privileges. R. 2:2-3(a)(2).
The following factual scene was established below. At about 9:07 p.m. on April 28, 1980 Patrolmen James Clayton and Robert Colmorgen of the Red Bank Police Department received a radio communication from Police Sgt. Raymond Moore advising that a light-colored pickup truck was identified as the vehicle which at 9:03 p.m. had struck the front of a motor vehicle which was discharging a passenger. Shortly thereafter the patrolmen observed а truck of that description passing another car and travelling south in the northbound lane of Broad Street in Red Bank. The truck had one headlight on and appeared to have been in an accident. The officers followed the truck to Monmouth Strеet and stopped it a short distance from the police station. Although there did not appear to have been any erratic driving by defendant up to that point, the officers, based upon their conversation with defendant, concluded that defendant
At the police station the officers questioned defendant before a videotape camera regarding his involvement in the accidents and his consumption of alcohol during thаt evening. The videotape was entered into evidence at both trials and showed that at 9:25 p.m. defendant refused to take a breathalyzer test unless he could first consult with his attorney. This refusal was despite Clayton‘s repeated warnings that he was required by law to submit to such an examination. See
Defendant testified at the municipal court trial. Although he denied involvement in the earlier accident, he admitted that he was involved in a collision with another car at 9:07 p.m.2 According to defendant, the other driver became frantic and
With respect to the accident which occurred at 9:03 p.m., Tina Bennett testified that she was getting out of a car in front of her house when a light-colored truck with an open back collided with the car and drove away. She could not identify the driver of the truck. Defendant denied knowledge of the earlier accident, and in acquitting defendant of that charge the municipal court judge specifically found that while defendant was involved in the 9:03 p.m. accident, he was not aware that he had struck the parked car from which Ms. Bennett was alighting.
I
We have fully examined the record and the arguments of counsel in light of defendant‘s contentions that the trial judge erred factually in finding him guilty of the remaining three charges. We find these contentions to be without merit. R. 2:11-3(e)(2). We are satisfied that the convictions for leaving the scene of the 9:07 p.m. accident, careless driving and driving while under the influence of alcohol are fully supported by
II
The more troublesome issue is whether an individual who initially refuses a breathalyzer test may subsequently and within a reasonable time thereafter “cure” that refusal by agreeing to take the test.
The issue of whether there can be a “cure” of the refusal has not been expressly considered in any reported decision in this State. We have been referred to various out-of-state decisions in the briefs of counsel. The mаjority rule in those cases which have an implied consent statute like ours, see
Other jurisdictions have, however, refused to follow the line of cases represented by Zidell and Krueger. See Lund v. Hjelle, 224 N.W.2d 552 (N.D.Sup.Ct. 1974); Zahtila v. Motor Vehicle Div., 560 P.2d 847 (Colo. App. 1977); Sedlacek v. Pearson, 204 Neb. 625, 284 N.W.2d 556 (Sup.Ct. 1979), and State v. Moore, 614 P.2d 931 (Hawaii Sup.Ct. 1980).
The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused.
The cases allowing a “cure” generally do so оn the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state‘s evidence nor defeat the purpose of the implied consent statute. In Lund v. Hjelle, supra, (224 N.W.2d 552), the Supreme Court of North Dakota affirmed the lower court‘s reversal of the commissioner‘s revocation of the motorist‘s license under the implied consent law of that state. Lund had been arrested around 8:30 p.m. and originally agreed to take the test, but changed his mind after the police brought him to the hospital. He was returned to the police station where he made several calls, and at about 9:30 p.m. requested to take the test. The court decided to allow a “cure” because it considered the object of the imрlied consent law was to determine the alcohol content of the blood of persons suspected of driving while intoxicated. Achievement of this objective was found not to depend upon the blood test being administered immediately after arrest or immediately upon the occurrence of the event, e.g., an accident, giving rise to the need to determine if a driver was intoxicated. Counsel for the commissioner conceded that a chemical test two hours after the arrest would have been accurate. The court was satisfied that the proofs established that there is a period of time after such an event during which a test will still be accurate. It held, therefore, that a delay for a reasonable period of time while an arrested person considers or reconsiders his decision will not frustrate the objective of the law provided certain conditions are met including, in addition to a reasonable period of time, that the test would still be accurate, that thеre would be no substantial inconvenience or expense to the police, and that defendant has
We have considered the circumstances of this case and conclude that the policy of our implied consent law would be violated here if a cure was allowed. Corrado waited until after apparently an hour had elapsed and until he had talked with his attorney before he asked to take the test. Under State v. Pandoli, 109 N.J. Super. 1 (App.Div. 1970), he clearly had no right to do so.
... 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 (App.Div. 1968); Ent v. State, Department of Motor Vehicles [265 Cal. App.2d 936], 71 Cal. Rptr. 726 (Ct.App. 1968).
In any еvent, the request for consultation with counsel necessarily involved a delay in administration of the test. Having in mind the remedial purpose of the statute, and the rapidity with which the passage of time and the physiological processes tend to eliminate evidence of ingested alcohol in the system, it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer‘s request that the arrested motorist take the test constitutes a refusal to do so. See Ent v. State, Department of Motor Vehicles, supra. The occasion is not one for debate, maneuver or negotiation, but rather for a simple “yes” or “no” to the officer‘s request. [at 4].
We are therefore constrained to affirm the determination of the Director based on the precise factual complex before us.
The municipal court convictions are also affirmed.