                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0473-14T2

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                 March 17, 2016
v.
                                              APPELLATE DIVISION
DIANE MONACO,

     Defendant-Appellant.
_________________________________

         Submitted November 5, 2015 – Decided March 17, 2016

         Before Judges Alvarez, Ostrer and Manahan.

         On appeal from the State of New Jersey, Law
         Division, Morris County, Municipal Appeal
         No. 13-041.

         Diane Monaco, appellant pro se.

         Fredric M. Knapp, Morris County Prosecutor,
         attorney   for  respondent   (Paula  Jordao,
         Assistant Prosecutor, on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.

     Defendant   Diane   Monaco   appeals    from   her   June     24,   2014

conviction, after a trial de novo, of driving while under the

influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50, and

refusing to submit to a chemical breath test, N.J.S.A. 39:4-
50.2.     Having considered defendant's arguments in light of the

facts and applicable law, we affirm.

                                     I.

    At the municipal court trial, East Hanover Police Officers

Michael    Filippone   and   Randy   Patner    testified   for   the    State.

Defendant testified in her own defense.             She also called Gil

Snowden, an expert of field sobriety tests; John Scolamiero,

M.D., her personal physician; and a friend, Claudette Maher.                  We

discern the following facts from the record.

    Shortly after midnight on April 14, 2012, defendant drove

through a stop sign at a T-shaped intersection in a residential

neighborhood of East Hanover Township.          Failing to turn right or

left, she continued forward, jumped the curb, and came to a stop

on the lawn of a residence.      The airbag deployed.

    When Filippone arrived at the scene, defendant's vehicle

was still in drive, but the engine was off.            Filippone detected

the odor of alcoholic beverage.           Defendant's speech was slurred.

Other aspects of defendant's appearance indicated intoxication.

She denied consuming any alcoholic beverages.

    The officer administered field sobriety tests.                Defendant

performed poorly on an alphabet test, skipping several letters.

Although she stated she had an injury to her left knee, the

officer observed that defendant had no difficulty walking.                    He




                                      2                                A-0473-14T2
asked her to perform the one-leg stand and heel-to-toe tests.

She did poorly on both.                   She was staggering and swaying.                     Her

eyes   were      watery       and    bloodshot;          her    face    was    flushed.       The

officer     arrested          defendant,          and    she    was    transported      to    the

police station.

       Defendant was initially held in a processing room for about

a    half   hour,      as     depicted       by    a    video    recording       in   evidence.

During that time, she was searched by a police matron, given a

Miranda1     warning,         and     read      the     standard       statement      regarding

chemical breath tests, and the DWI questionnaire.                                 Patner also

completed        a    property        report.           Defendant       appeared      calm    and

cooperative.           She admitted she had consumed wine that evening.

An officer permitted her to use her inhaler for her asthma.

Over twenty minutes elapsed thereafter while Filippone, Patner

(who had also been dispatched to the scene), or the matron were

present     in       the     room.        Filippone       and     Patner      both    testified

defendant did not regurgitate or put anything in her mouth.

Defendant      was         then    escorted       to    another       room    where   Filippone

administered the breath test.

       Filippone instructed defendant that she needed to breathe

in   deeply,         and    blow     in   one     long    continuous         breath   until    he


1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                                   3                                   A-0473-14T2
directed her to stop.            When defendant interjected that she had

used her inhaler, Filippone responded it would not interfere

with   her    test,    because    she    had     done    so    over    twenty     minutes

earlier.      After the first attempt, Filippone asserted she was

not    making   a     genuine     effort    to    blow        into    the   mouthpiece.

Defendant responded she had asthma.                     After two more attempts,

Filippone terminated the breath test.2                   Defendant's air volumes

were .7, 1.0 and .5 liters, over 5.2, 5.9 and 4.1 seconds,

respectively.         Defendant was then taken to a cell, where she

acted belligerently, yelled, and cursed.

       Filippone's trial testimony presented the facts set forth

above.     Patner testified that he observed defendant during the

twenty-minute observation period.

       Defendant      testified    that    she    had     one    glass      of    wine   at

dinner with her daughter, and a second glass while visiting

Maher at her home.          She said she drove through the stop sign

while she was distracted by a phone call from Maher.                             She said

her    knee   injury,     which    she     documented,          prevented        her   from

performing well on the field sobriety tests.                     She also presented


2
  Although the officer was authorized to terminate the test at
that time, we do not condone the officer's harsh language.
Having concluded defendant did not try to complete the test, he
demeaned defendant, stating she disgusted him.      The officer
lacked the expertise to judge the extent of defendant's claimed
disability.



                                           4                                      A-0473-14T2
evidence of another medical condition to explain an aspect of

her appearance when arrested.

       Defendant challenged Filippone's testimony.              She asserted

he could not have detected an odor of alcoholic beverage as she

had consumed coffee at the end of the evening.                She denied that

he    asked   her   if   she   needed   medical    attention.       She   also

maintained he did not ask her to recite the alphabet, and he did

not adequately instruct her how to perform the physical field

sobriety tests.      She asserted she blew as hard as she could when

performing the breath test.

       Defendant also claimed there was an interruption in the

twenty-minute observation period because she was permitted to

leave the processing room to use the restroom in a cell, before

returning to the processing room.           She asserted the police had

tampered with the video evidence.

       Dr. Scolamiero, defendant's treating physician for roughly

twenty-five years, was permitted to testify as an expert in

internal medicine with treatment of pulmonary issues as part of

his   practice.      The   doctor   testified     defendant    suffered   from

asthma, for which he had prescribed multiple medications.                  The

municipal court judge sustained an objection to the question

whether, in the doctor's opinion, defendant was able to exhale

1.5 liters of air during a four-and-a-half second period.                  The




                                        5                            A-0473-14T2
court held defense counsel had not laid a sufficient foundation.

Defense counsel never returned to the question, although the

doctor's   testimony      resumed   on       the   next    trial     day,    when    he

presented pulmonary function tests he administered before and

after defendant's arrest.

    The    doctor    reviewed     the    test      results    from   November       11,

2011.      He    stated   that    post-treatment,            defendant's     "forced

expiratory      volume"   was    only    fifty-six        percent    of     what    was

predicted for a woman of her age, weight, and body mass index.

Her flow rate was forty-five percent of what was predicted.                         The

report indicated defendant had "moderate obstruction."

    However, the doctor's explanation of the test results was

often confusing and self-contradictory, particularly when he was

asked to describe defendant's test results that would allow for

comparisons with the minimum breathing volumes required for the

chemical breath test.3           He did assert that defendant "had an

ability prior to being treated for approximately . . . 1.3 to

3
  For example, the doctor was asked, "Doctor, now with regard to
D-26 [the test results for June 25, 2012], can you calculate Ms.
Monaco's flow rate in terms of liters per minute?" (emphasis
added).    He responded, "That was 1.643."     He was asked to
explain how he arrived at 1.643.          He responded, "Forced
expiratory volume which is in this case 133 times the percent
.33, divided by her BMI." After the judge confirmed defendant's
BMI, the doctor was asked, "And that figure again, Doctor, is
what"?   He answered, "1.643."   He was asked "And that's liters
per minute?"     He answered, contrary to his answer earlier,
"That's in four and a half seconds."



                                         6                                   A-0473-14T2
1.4 liters over about four or five seconds."                             She improved to

three liters post-treatment.                 However, he noted that tests were

performed while defendant was standing.                         Her results would be

roughly twenty percent lower if seated while taking a chemical

breath test.              He asserted that factors such as excitability,

nervousness, anxiety, and trauma could also negatively affect a

person's ability to breathe at a particular volume.

       Snowden testified about how a person's physical impairments

could affect balance and performance on field sobriety tests.

Maher testified that defendant had a glass of wine early in the

evening, and a cup of coffee later.                          She stated she called

defendant shortly after she left, but did not reach her.                                 Soon

thereafter, defendant called Maher to report the accident.

       The    municipal          court    credited    the    police       witnesses      over

defendant,          and    found    her    guilty     of    DUI    and    refusal.         As

defendant had a prior DUI in 2009, the court imposed, on the

DUI,    a    two-year       loss     of    license,    forty-eight         hours    at     the

Intoxicated         Driver    Resource      Center    (IDRC),       no    jail     time,    an

ignition interlock, and mandatory minimum fines and fees; and,

on the refusal, a consecutive two-year loss of license, forty-

eight       hours    at    the     IDRC,    interlock      to     run    concurrent,       and

mandatory minimum fines and fees.




                                              7                                     A-0473-14T2
      In the trial de novo, defendant argued the police lacked

probable     cause      to     arrest     because    they     did   not    properly

administer     the      field    sobriety      tests;   the     police    were   not

credible;    the     police      failed     to   observe      defendant   for    the

requisite twenty-minute period; the police read her an outdated

standard statement; the state tampered with evidence; and Dr.

Scolamiero established that defendant was physically incapable

of breathing at a sufficient volume for the Alcotest.                      The Law

Division judge rejected each of these arguments.

      The court found there was probable cause to arrest based on

the   totality     of    the    circumstances       confronting     the   arresting

officers.    Citing State v. Bealor, 187 N.J. 574, 589 (2006) and

State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993),

the court found that probable cause existed, even absent the

field sobriety tests, based on the single-car accident, the odor

of alcohol, defendant's physical appearance, and slurred speech.

The field sobriety tests only bolstered the finding of probable

cause.     Coupled with her admission that she consumed wine, the

court found the State established beyond a reasonable doubt that

defendant was guilty of DUI.

      The court rejected defendant's challenge to the officers'

credibility.       Citing State v. Johnson, 42 N.J. 146, 157 (1964),

the court gave due, but not controlling, regard to the municipal




                                           8                               A-0473-14T2
court judge's determination that the officers were more credible

than defendant.

      The court also found that the State proved, by clear and

convincing evidence, that the State complied with the twenty-

minute observation period required by State v. Chun, 194 N.J.

54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.

2d   41    (2008).        The       court   was     satisfied      that    Filippone        and

Patner, as well as the matron, maintained sufficient proximity

to   the    defendant          to     detect       whether   she     did     anything        to

compromise the chemical breath test, such as regurgitating or

putting something in her mouth.                    The court noted that eye-to-eye

contact was not required, citing State v. Carrero, 428 N.J.

Super. 495, 513 (App. Div. 2012), and State v. Filson, 409 N.J.

Super. 246, 258 (Law Div. 2009).

      Relying on State v. O'Driscoll, 215 N.J. 461 (2013), the

court     found    that   the       failure    to     mention   the       prospect     of   an

ignition          interlock          in     the        standard       statement             was

inconsequential,          as        there   was      no   indication        it   affected

defendant's non-compliance with the breath test.                           The court also

rejected defendant's claim that she left the processing room to

use the restroom, and that the police tampered with the video

evidence.         The court closely examined the video evidence, and

concluded defendant's version of the facts lacked credibility.




                                               9                                     A-0473-14T2
      Finally,    the   court    found    that      the    State    proved   refusal

beyond a reasonable doubt.         The court noted the four elements of

the   violation,      citing    State    v.   Marquez,      202     N.J.   485,    503

(2010):

              (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.

      Based on the court's earlier findings, the State satisfied

the   first    and    second    elements;     and    the    video    evidence      and

Filippone's testimony established the third and fourth.

      The court focused on defendant's argument, based largely on

Dr.   Scolamiero's      testimony,       that    her       asthma    rendered      her

incapable of producing the minimum volume required.                        The court

noted that Chun required most arrestees to produce a minimum

volume of 1.5 liters over 4.5 seconds, and a minimum flow rate

of 2.5 liters per minute.          Chun, supra, 194 N.J. at 97.                 Women

over sixty years of age have to produce 1.2 liters over 4.5

seconds.      Ibid.

      The court found that Dr. Scolamiero's testimony ultimately

did not establish lack of capability.                 The court noted that he




                                         10                                  A-0473-14T2
testified   that   during   her   November   2011   test,   the   last   one

before the accident, she had a pre-treatment ability to blow 1.3

to 1.4 liters over about four to five seconds, which improved to

three liters after treatment.       She also had a minimum flow rate

of 1.74 liters per minute, pre-treatment.           The court noted that

defendant provided her breath samples after using her inhaler.4

     The court found defendant guilty of DUI and refusal and

imposed the same sentence that the municipal court imposed.

     On appeal, defendant presents the following points for our

review, renewing many of the arguments presented to the Law

Division:

            Point 1: No Probable Cause.

            Point 2: Credibility of the Police Officers.

            Point 3: Twenty Minute Observation Period.

            Point 4: Court Is Limited to Impose Only
            Consequences That The Defendant Had Been
            Informed Of; Incorrect Information on Ticket
            #1410-EHT-002619.

            Point 5:   Tampering With Evidence.




4
   The court also stated that "defendant never tells the
[o]fficers that she is incapable of producing the required
volume; instead she informs the [o]fficers repeatedly that she
uses and had just used her inhaler."         However, as noted,
defendant did tell Filippone that she had asthma after she
failed to provide sufficient air volume in her first attempt.



                                    11                             A-0473-14T2
                                         II.

    In     reviewing       a   trial    court's        decision        on    a   municipal

appeal, we determine whether sufficient credible evidence in the

record supports the Law Division's decision.                       Johnson, supra, 42

N.J. at 162.       Unlike the Law Division, which conducts a trial de

novo on the record, R. 3:23-8(a)(2), we do not independently

assess    the     evidence.      State       v.    Locurto,      157    N.J.        463,   471

(1999).     In addition, under the two-court rule, only "a very

obvious and exceptional showing of error" will support setting

aside     the     Law   Division       and    municipal          court's      "concurrent

findings of facts . . . ."              Id. at 474.         However, where issues

on appeal turn on purely legal determinations, our review is

plenary.        State v. Adubato, 420 N.J. Super. 167, 176 (App. Div.

2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)), certif. denied, 209 N.J. 430 (2012).

    Applying        this   standard      of       review,   we    affirm      defendant's

conviction       substantially     for       the     reasons      set       forth    in    the

written opinion of the Law Division judge.                        We comment only on

two aspects of defendant's challenge to her refusal conviction:

the officer's failure to inform her that an ignition interlock

would be required if convicted of refusal; and allocation of the

burden of proof on the issue of her alleged incapability to

complete the chemical breath test.




                                             12                                      A-0473-14T2
                                                A.

       Defendant renews her argument that she was not adequately

informed of the consequences of refusal because the officer did

not mention the ignition interlock requirement.                          We recognize

that the standard statement in use when defendant was arrested

in    April     2012    did    not    refer      to   imposition   of    the   ignition

interlock requirement upon conviction, notwithstanding that the

requirement was made a mandatory consequence of conviction in

2010.     L. 2009, c. 201, §§ 2, 5 (Jan. 14, 2010).                      The standard

statement promulgated by the Attorney General was not revised to

incorporate mention of the ignition interlock consequences until

July 2012.       See Office of the Attorney Gen., Standard Statement

for     Motor    Vehicle       Operators         (July   1,   2012),    available      at

http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf.

       In O'Driscoll, supra, 215 N.J. at 468-69, 473-74, the Court

addressed the closely related issue of an officer's reading of

an outdated standard form that failed to incorporate various

enhancements       of    the    license         suspension    period    and    potential

fines.     The Court held that the question of whether a defendant

could avoid conviction for refusal because he was erroneously

read a superseded or outdated standard statement was subject to

a    materiality       test.         Id.   at    476.    "Courts   should       consider

whether an error in the reading of the standard statement is




                                                13                              A-0473-14T2
material in light of the statutory purpose to inform motorists

and impel compliance."          Id. at 466.             The Court stated that

neither prior case law, nor the "language of the implied consent

statute . . . require absolute precision."                 Id. at 476.

      In   making   the    materiality       finding,    courts        must    "examine

whether    a   defendant    reasonably       would   have       made    a     different

choice and submitted to a breath test had the officer not made

an error in reciting the statement."                 Id. at 466.            Under this

approach,      "discrepancies    that     would      not    have       influenced       a

reasonable driver's choice to submit to a breath test would not"

be deemed material and would not warrant reversal.                       Id. at 477-

78.   However, "substantive errors that do not adequately inform

motorists of the consequences of refusal and would affect a

reasonable person's decision-making would be problematic."                           Id.

at 478.     The evaluation of a deviation's materiality "requires a

case-by-case evaluation of the facts."                  Ibid.     Considering the

facts in O'Driscoll, the Court found "the officer's mistakes

were inconsequential" and the sentence imposed was within the

range recited by the officer.          Id. at 478-79.

      We   note   that    O'Driscoll    was    decided      in   September        2013,

after all but summations and decision in the Municipal Court,

but before the trial de novo.            The record contains no testimony

or other competent evidence to indicate that the mandated use of




                                        14                                     A-0473-14T2
an ignition interlock device for six months would have deterred

defendant from refusing, particularly inasmuch as the prospect

of a lengthy license suspension did not.                    We therefore reject

defendant's argument that her conviction should be set aside

because    the   standard    statement       failed    to    advise    her   of    the

ignition interlock requirement.

                                        B.

     We also conclude that a defendant bears the burden of proof

regarding his or her alleged physical impairment to complete a

chemical breath test.

     The Court has held a defendant who defends a refusal charge

by   claiming    he   did    not   speak       or   understand        English,     and

therefore did not understand the request to submit to the test,

bears both the burden of production and persuasion on the issue.

Marquez,    supra,    202   N.J.   at   514.        This    approach    places     the

burden on the party with the greatest access to information on

the issue, and "help[s] separate feigned claims from real ones."

Ibid.     Similarly, a defendant bears the burden of persuasion to

establish he was too confused to refuse.                   State v. Leavitt, 107

N.J. 534, 542 (1987); State v. Sherwin, 236 N.J. Super. 510, 518

(App. Div. 1989).           Although we are unaware of published New

Jersey authority that places the burden on a defendant to prove




                                        15                                   A-0473-14T2
physical incapability to perform a breath test, this allocation

of the burden is consistent with Marquez and Leavitt.

      Our        conclusion          is        also        consistent          with       out-of-state

authority.         See, e.g., Hollis v. Oklahoma, 183 P.3d 996, 999-

1000 (Okla. 2008) (requiring defendant to present evidence he

was   mentally          incapable          of    giving           a    knowing        and          conscious

refusal); Dep't of Transp. v. Kelly, 335 A.2d 882, 884 (Pa.

Commw.      Ct.    1975)    (placing             burden          on    defendant          to       prove   by

competent evidence he was physically incapable of submitting to

Breathalyzer test); Cunningham v. Bechtold, 413 S.E.2d 129, 135-

36    (W.    Va.        1991)    (defendant                had    burden        to    show           medical

disability, in form of broken nose, prevented him from breathing

into Breathalyzer); see also Harvey M. Cohen & Joseph B. Green,

Apprehending        and     Prosecuting               the     Drunk      Driver           §    5.07(7)(e)

(2015) ("In those courts where a refusal may be excused with

evidence that the defendant's ability to comply was legitimately

impaired,         the    defendant             bears        the       burden     of       proving          the

disability.");           Richard          E.    Erwin,        Defense      of        Drunk          Driving,

Criminal-Civil (3d ed. 2015) § 4.08[8] ("The driver has the

burden      of    proving       by   competent             evidence      that        he       or    she    was

physically unable to take the test.                               When no obvious inability

is apparent, the driver must support a claim of inability with




                                                      16                                            A-0473-14T2
competent medical evidence, and failure to provide such evidence

will result in a finding of refusal.").5

     Applying    these   principles,          we   discern   no   error    in    the

court's finding that defendant failed to demonstrate she was

incapable   of   performing        the    chemical      breath     test.         Dr.

Scolamiero's testimony was often confusing and inconsistent.                      He

persuasively demonstrated that defendant suffered from asthma

and her breathing capacity was roughly half that predicted of a

woman her age and size.        He also presented measurements of pre-

treatment breathing volumes and flow rates that fell below the

levels required for the chemical breath test.

     However, defendant's measurements doubled after treatment,

producing a volume of three liters, which exceeded the minimum

requirement.     Even    if   it   were       reduced   by   twenty   percent     to

account for a seated position, the measurement would exceed the

required 1.5 liters.      The doctor was not asked whether two puffs

from an inhaler, as defendant took in the processing room, would

produce such an improvement.         Nor was he asked, after presenting


5
  Under the Criminal Code, "A person is not guilty of an offense
unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is
physically capable."      N.J.S.A. 2C:2-1(a).     However, "the
provisions of the Code governing principles of liability are not
applicable to the motor vehicle violation of driving while
intoxicated . . . ."      State v. Hammond, 118 N.J. 306, 318
(1990).



                                         17                                A-0473-14T2
his testing data, whether he believed defendant was capable of

producing     sufficient        air   volume    when     she     was     tested     by

Filippone.        Thus,   the    court     reasonably    found    that    defendant

failed   to    meet     her     burden    of   proving    she    was     physically

incapable of producing the minimum air volume.

                                          C.

    To      the      extent     not      addressed,     defendant's       remaining

arguments     lack    sufficient      merit    to   warrant     discussion     in    a

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

    Affirmed.




                                          18                                A-0473-14T2
