                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be bin ding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2589-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LORI YAKITA,

     Defendant-Appellant.
___________________________

                   Argued May 13, 2019 – Decided May 29, 2019

                   Before Judges Fasciale and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Atlantic County, Municipal Appeal No. 17-
                   008.

                   Matthew W. Reisig argued the cause for appellant
                   (Reisig Criminal Defense & DWI Law, LLC, attorneys;
                   Matthew W. Reisig, on the brief).

                   Melinda A. Harrigan, Assistant Prosecutor, argued the
                   cause for respondent (Damon G. Tyner, Atlantic
                   County Prosecutor, attorney; Melinda A. Harrigan, on
                   the brief).

PER CURIAM
      Defendant Lori Yakita was arrested in Absecon and charged with driving

while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a chemical

breath test (refusal), N.J.S.A. 39:4-50.4a. In May 2017, the municipal court

conducted a one-day trial, during which the arresting officer testified on behalf

of the State and defendant presented an expert witness in "breath[-]testing

procedures and operations." At the conclusion of the State's case, the municipal

court granted defendant's motion for a directed verdict on the DWI charge; at

the conclusion of the trial, the court found defendant guilty of refusal. Following

a trial de novo in the Law Division, the judge issued a thorough written decision,

also finding defendant guilty of refusal.

      Defendant now appeals from her refusal conviction, raising the following

points for our consideration:

            POINT I

            SINCE THE DEFENDANT WAS ACQUITTED OF
            DWI IN VIOLATION OF N.J.S.A. 39:4-50 IN THE
            MUNICIPAL COURT BELOW BECAUSE THE
            STATE DID NOT PROVE THAT SHE OPERATED A
            MOTOR VEHICLE BEYOND A REASONABLE
            DOUBT THERETO, DEFENDANT'S CONVICTION
            FOR REFUSAL IN VIOLATION OF N.J.S.A. 39:4-
            50.4A MUST BE REVERSED BY THE APPELLATE
            DIVISION SINCE THE FIRST ELEMENT OF NEW
            JERSEY'S REFUSAL STATUTE REQUIRES THE
            STATE TO PROVE BEYOND A REASONBLE
            DOUBT WHETHER THE ARRESTING OFFICER

                                                                           A-2589-17T4
                                         2
HAD PROBABLE CAUSE TO BELIEVE THAT THE
PERSON HAD BEEN DRIVING OR WAS IN
ACTUAL PHYSICAL CONTROL OF A MOTOR
VEHICLE ON THE PUBLIC HIGHWAYS OR
QUASI-PUBLIC AREAS OF THIS STATE WHILE
THE PERSON WAS UNDER THE INFLUENCE OF
INTOXICATING LIQUOR. STATE V. CUMMINGS,
184 N.J. 84 (2005). ACCORDINGLY, THE STATE'S
PROSECUTION OF DEFENDANT FOR REFUSAL
MUST FAIL FOR THE SAME RATIONALE
UNDERPINNING HER ACQUITTAL FOR DWI.

POINT II

DEFENDANT'S EXCULPATORY RESPONSES
WHEN ASKED TO PROVIDE SAMPLES OF HER
BREATH FOR CHEMICAL TESTING PROVIDE
THE   REQUISITE  REASONABLE     DOUBT
REGARDING HER REFUSAL CONVICTION.
HOWEVER, NEITHER TRIAL COURT BELOW
EVEN   CONSIDERED   THE    FOREGOING
EXCULPATORY RESPONSES IN ADJUDICATING
HER GUILTY, WHICH CONSTITUTES PLAIN
ERROR THEREBY REQUIRING REVERSAL OF
CONVICTION.

POINT III

DEFENDANT'S CONVICTION FOR REFUSAL IN
VIOLATION OF N.J.S.A. 39:4-50.4a SHOULD BE
REVERSED AND REMANDED FOR A NEW TRIAL
BASED ON BOTH TRIAL COURTS' PLAIN ERROR
IN   REJECTING     DEFENDANT'S       LEGAL
ARGUMENT TO PERMIT HER TO CALL BREATH
TEST COORDINATOR STANKS AS A DEFENSE
TRIAL WITNESS TO DIRECTLY CHALLENGE
THE CREDIBILITY OF THE ARRESTING
OFFICER.

                                               A-2589-17T4
                     3
We reject these arguments and affirm.

                                         I.

      We derive the salient facts from the testimony adduced at the municipal

court trial. On August 20, 2016, at approximately 10:44 p.m., Absecon Police

Officer Jeffrey Mazer was patrolling a shopping center when he noticed a black

Acura, with its headlights illuminated. The Acura was the only car in the

parking lot, which was adjacent to a liquor store that closed at 10:00 p.m.

      Upon approaching the car, Mazer noticed three small empty airplane-sized

bottles of whiskey on the ground just outside the driver's door. Defendant was

seated in the driver's seat, "passed out," with her head against the steering wheel.

As defendant opened the window, she appeared dazed, confused and startled.

Mazer smelled alcohol "emanating from the vehicle and . . . her person."

Defendant's eyes appeared "bloodshot, watery, and a little droopy." Defendant

was the sole occupant of the vehicle; defendant's seat belt was fastened; the

engine was running with the key in the ignition; and the air conditioner was

turned on.

      Slurring her speech, defendant admitted she had been drinking after

purchasing alcohol at the liquor store. Defendant was unable to maintain her

balance as she exited the car and refused to perform the walk-and-turn test and


                                                                            A-2589-17T4
                                         4
the one-leg-stand test. She recited the alphabet with slurred speech. Mazer

placed defendant under arrest for DWI.

        After conducting a twenty-minute visual observation of defendant at

police headquarters, Mazer read aloud to her the Attorney General's Standard

Statement for Motor Vehicle Operators (standard statement), informing

defendant of the consequences of her refusal to submit to a breath test. 1 When

ultimately asked whether she would submit to breath samples, defendant

responded, "No, I wasn't driving." Mazer then read aloud the following passage

from the standard statement:

              Your answer is not acceptable, the law requires that you
              submit samples of your breath for breath testing. If you
              do not answer or answer with anything other than yes,
              I will charge you with refusal. Now, I ask you again,
              will you submit to breath testing?




1
    See N.J.S.A. 39:4-50.2(e), providing in pertinent part:

              No chemical test . . . 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 . . . . A
              standard statement, prepared by the chief administrator,
              shall be read by the police officer to the person under
              arrest.
                                                                          A-2589-17T4
                                         5
Defendant responded, "[W]ell now that's a pickle I wasn't driving, no." Mazer

then charged defendant with DWI and refusal.

      After hearing Mazer's account and crediting his testimony, the municipal

court found beyond a reasonable doubt that the officer had probable cause to

believe defendant was in actual physical control of the Acura while under the

influence of alcohol. The Law Division judge reached the same conclusion after

reviewing the Municipal Court record. This appeal followed.

                                      II.

      We begin our review with well-settled principles. On appeal from a

municipal court to the Law Division, the review is de novo on the record. R.

3:23-8(a)(2). The Law Division judge must make independent findings of fact

and conclusions of law but defers to the municipal court's credibility findings.

State v. Robertson, 228 N.J. 138, 147 (2017).

      Unlike the Law Division, however, we do not independently assess the

evidence. State v. Locurto, 157 N.J. 463, 471-72 (1999). The rule of deference

is more compelling where, as here, the municipal and Law Division judges made

concurrent findings. Id. at 474. "Under the two-court rule, appellate courts

ordinarily should not undertake to alter concurrent findings of facts and

credibility determinations made by two lower courts absent a very obvious and


                                                                        A-2589-17T4
                                       6
exceptional showing of error." Ibid. "Therefore, appellate review of the factual

and credibility findings of the municipal court and the Law Division 'is

exceedingly narrow.'"    State v. Reece, 222 N.J. 154, 167 (2015) (quoting

Locurto, 157 N.J. at 470).

      In order for a defendant to be found guilty of refusal under N.J.S.A. 39:4 -

50a, the State must establish beyond a reasonable doubt 2 each of the following

elements:

            (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 [DWI]; (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.

            [State v. O'Driscoll, 215 N.J. 461, 475 (2013) (quoting
            State v. Marquez, 202 N.J. 485, 503 (2010)); see also
            N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:4-50.4a].

      Refusal is "a separate and distinct offense from conviction of drunk

driving." State v. Wright, 107 N.J. 488, 504 (1987). Accordingly, a conviction



2
  More than a decade ago, our Supreme Court determined, for double jeopardy
purposes, the proper standard of proof for refusal is beyond a reasonable doubt,
notwithstanding the preponderance of the evidence standard set forth in N.J.S.A.
39:4-50a. Cummings, 184 N.J. at 95-96. To date, the statute has not been
revised accordingly.
                                                                          A-2589-17T4
                                        7
for refusal to take a breath test can be sustained where there is probable cause to

believe the defendant was DWI despite a lack of proof beyond a reasonable

doubt as to operation. Id. at 502-04. Thus, "proof of actual operation is not

required." Id. at 490. In sum, proof beyond a reasonable doubt that the officer

had reasonable cause to believe the motorist had actual physical control of a

vehicle while under the influence of alcohol will suffice. Cummings, 184 N.J.

at 95-96.

      While the State must prove guilt beyond a reasonable doubt, id. at 89,

probable cause to arrest is a lower threshold, i.e., "a well-grounded suspicion

that a crime has been or is being committed" by the defendant. State v. Marshall,

199 N.J. 602, 610 (2009) (internal quotation marks omitted). "Probable cause

exists where the facts and circumstances within . . . [the officers'] knowledge

and of which they had reasonably trustworthy information [are] sufficient in

themselves to warrant a [person] of reasonable caution in the belief that an

offense has been or is being committed." Ibid. (alterations in original) (internal

quotation marks omitted). Although it is difficult to define the concept with

precision, probable cause requires "more than a mere suspicion of guilt," but less

than is needed to convict at trial. State v. Basil, 202 N.J. 570, 585 (2010).




                                                                           A-2589-17T4
                                         8
       Probable cause for driving under the influence will be found where an

officer "had reasonable grounds to believe that the driver was operating a motor

vehicle in violation" of the DWI statute. State v. Moskal, 246 N.J. Super. 12,

21 (App. Div. 1991) (internal quotation marks omitted). In assessing probable

cause, a judge considers the totality of the circumstances. State v. Moore, 181

N.J. 40, 46 (2004). They are viewed "from the standpoint of an objectively

reasonable police officer." Basil, 202 N.J. at 585.

      Based on those principles and our review of the record, we are satisfied

the Law Division judge's finding of guilt reasonably was reached on sufficient,

credible evidence present in the record. The officer observed defendant in the

driver's seat of her vehicle, wearing a seat belt, with the key in the ignition and

the engine running. Defendant had passed out, with her head resting on the

steering wheel. She smelled of alcohol, and empty bottles of whiskey were

located on the ground just outside the car door. There were no other occupants

in the car. Defendant and her car emitted an odor of alcohol. Defendant was

confused, her speech was slurred, her eyes were bloodshot, and she could not

maintain her balance. She also admitted she had been drinking. The totality of

those circumstances amply supports the officer's probable cause to believe




                                                                           A-2589-17T4
                                         9
defendant was in actual control of the car while under the influence of alcohol.

See Moore, 181 N.J. at 46.

      We therefore find no support for the argument that defendant's conviction

cannot be sustained absent a finding beyond a reasonable doubt that she actually

operated the car while under the influence of alcohol, or intended to operate the

vehicle. See State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992)

(finding the arrest at issue "was clearly justified by defendant's presence behind

the wheel of a vehicle with its lights on and its engine running at a time when

his breath disclosed a heavy odor of alcohol . . . [which] permits the logical

conclusion of an intent to drive").          Contrary to defendant's unsupported

contention, her DWI acquittal has no preclusive effect on the refusal charge.

      Little needs to be said about defendant's self-proclaimed novel argument

that her responses to Mazer's request to provide a breath sample for chemical

testing were "exculpatory" thereby giving rise to reasonable doubt. Under the

implied consent statute, N.J.S.A. 39:4-50.2(a), each "motorist using the public

roads in the State is deemed to have given consent to undergo a chemical test to

determine blood alcohol [levels] . . . at the request of a police officer[,] who has

reasonable grounds to believe that [the motorist] has been operating a motor

vehicle" while under the influence of alcohol. State v. Mulcahy, 107 N.J. 467,



                                                                            A-2589-17T4
                                        10
474 (1987). A motorist who fails to submit to a breath test when requested to

do so will be charged with refusal under N.J.S.A. 39:4-50.4a.

      Ultimately,   "'anything    substantially   short   of   an   unconditional,

unequivocal assent to an officer's request' 'would undermine law enforcement's

ability to remove intoxicated drivers from the roadways' and impede their ability

to conduct the test in a timely manner to ensure that the results are meaningful."

State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007) (quoting State v.

Widmaier, 157 N.J. 475, 497 (1999)), aff'd as modified, 196 N.J. 537 (2008).

"The occasion is not one for debate, maneuver or negotiation, but rather for a

simple 'yes' or 'no' to the officer's request." State v. Bernhardt, 245 N.J. Super.

210, 219 (App. Div. 1991).

      Here, defendant's responses to Mazer's request to perform a breath test

were far from the "unconditional, unequivocal assent" to his request sanctioned

by our Supreme Court. Widmaier, 157 N.J. at 488. Instead, defendant twice

stated she was not driving.      "Once the defendant says anything except an

unequivocal 'yes' to the officer's request after the officer has informed the

defendant of the consequences of a refusal, the defendant cannot legally cure the

refusal." Bernhardt, 245 N.J. Super. at 219.




                                                                           A-2589-17T4
                                       11
      Lastly, we find insufficient merit in the argument defendant raises in Point

III, which is unsupported by any authority whatsoever, to warrant discussion in

our written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-2589-17T4
                                        12
