Like discovering the proper charge for a motorist refusing to submit to a breath tesT
Footnotes, like bazaar emporiums, can contain hidden treasures. The best part about both is that you never know when you're going to stumble on something precious. It's the innocuous-seeming footnote, similar to the unassuming and faded painting, that turns out to be a priceless find. Recently, I stumbled upon an inconspicuous footnote, in an unpublished appellate division decision, that made me vow to read every single footnote I would ever come across. Little did I suspect when reading this footnote that I was going to uncover a mother lode. In State v. Lesser, A-4162-13T4 (App. Div. 2015), the defendant was arrested for DWI and subsequently charged with a refusal. In footnote two of the Lesser decision, the court wrote that the defendant was erroneously charged with a refusal under N.J.S.A. 39:4-50.2; and clarified that "the correct citation is N.J.S.A. 39:4-50.4(a)." Upon reading this footnote, I simultaneously experienced jubilation and frustration. Elated for having discovered a gold mine, I was equally flustered for not having discovered it earlier. I have seen countless tickets for 39:4-50.2 (charging my client with a refusal) and never thought twice about it. Immediately upon discovering footnote two at
the end of Lesser, I remembered the issues raised, discussed, and decided in State v. Nunnally, 420 N.J. Super. 58 (App. Div. 2011). There, the court explained that 39:4-50.2 is the implied consent statute; it is not the statute to be used for charging a motorist with a refusal. The implied consent statute is made up of four essential elements that must be satisfied before the police may charge the defendant with a refusal pursuant to 39:4-50.4a. Under 39:450.4(a), "the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of 39:4-50 or 39:450.14, shall refuse to submit to a test provided for in section 39:4-50.2 when requested to do so." The four essential elements under the implied consent statute (39:4-50.4a) are the following: (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. Once the four elements outlined above are satisfied, only then can an officer charge a defendant with a refusal under 39:4-50.4(a). So why not just amend the complaint to the correct statute and avoid the risk of losing the refusal charge on account of defense counsel's motion? It can be done, but the prosecutor must catch the error within the time set forth under N.J.S.A. 39:5-3. Putting aside a handful of exceptions, the state has a maximum of 90 days to amend or make changes to the original complaint, or to substantive offenses other than lesser included offenses. Rule 7:14-2. A complaint for refusing a breath test must be made within 90 days after the commission of the offense, pursuant to N.J.S.A. 39:5-3(b). This provision operates as a functional statute of limitations in that it bars prosecution unless the process is issued within the time limit. State v. Wallace, 201 N.J. Super. 608, 611 (1985). "[O]nce service of process occurs within the mandated time, i.e., 'timely notice of the allegations charged' is received by the defendant, formal errors or omissions may be corrected within a reasonable time." State v. Buczkowski, 395 N.J. Super. 40, 43-44 (App. Div. 2007). Construing the two rules in pari materia, we conclude that a failure to cite the correct substantive offense is not a "technical defect" subject to amendment under Rule 7:2-5 or Rule 7:14-2. Further, allowing an amendment to cite a different offense is fundamentally different than amending to correct a minor defect, such as the lack of a signature or naming the wrong jurisdiction in which the offense occurred. Nunnally, supra. The cases that have allowed amendments under Rule 7:2-5 or Rule 7:14-2 clear up any confusion as to what constitutes a technical amendment. In State v. Fisher, 180 N.J. 462, 464 (2004), for example, the court held that a police officer's failure to sign a complaint was a technical defect that could be cured by amendment. In reaching that conclusion, the court considered that the complaint, though unsigned, adequately put the defendant on notice of the charges against him, thereby "safeguarding the defendant's right to procedural due process." Further, allowing an amendment to add the signature would not interfere "with his defense on the merits." Fisher cited similar cases permitting amendment where an officer failed to sign a DWI summons, State v. Latorre, 228 N.J. Super. 314 (App. Div. 1988), and where the complaint listed the wrong municipality as the location of the offense, State v. Ryfa, 315 N.J. Super. 376 (Law Div. 1998). See also State v. Vreeland, 53 N.J. Super. 169 (App. Div. 1958) (listing the wrong municipality on the complaint). So what does this mean to practicing defense attorneys? Instead of retaining expensive experts to testify on behalf of the defense as to why or how the Alcotest was improperly administered; or instead of agreeing to the dismissal of the refusal as part of the plea deal; following the precedent in Lesser and Nunnally, you may want to do nothing and just wait. Given the fact that many police departments mistakenly charge a refusal under the implied consent statute, a strong argument could be made that it is an incorrect charge as it is not an offense. If the 90-day statute of limitations has expired under N.J.S.A. 39:5-3, then it cannot be amended, and the refusal should be dismissed under Nunnally. So the next time you're reading an opinion in a frantic frenzy to find the exact legal principle that you're looking for, sloooow down and heed the advice of the securely nestled footnote sitting idly at the bottom of the page. Who knows? It may be a Rembrandt. ■
Peyrouton is a criminal-defense and immigration attorney in Union City.
AUGUST 12, 2015 NJLJ.COM statewide legal authority since 1878 That Overlooked Footnote May Be a Masterpiece Like discovering the proper charge for a motorist refusing to submit to a breath test
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