                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding 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-2506-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JANET E. COYLE,

     Defendant-Appellant.
__________________________

                    Submitted February 25, 2019 – Decided April 12, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Municipal Appeal No.
                    27-17.

                    Albert P. Mollo, attorney for appellant.

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Nicole Handy, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a trial de novo in the Law Division, defendant Janet Coyle was

convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a; and failure

to maintain a lane, N.J.S.A. 39:4-88(b). She was acquitted of driving while

intoxicated (DWI), N.J.S.A. 39:4-50; and reckless driving, N.J.S.A. 39:4-96.

She appeals from her refusal conviction, 1 raising the following single argument

for our consideration:

            POINT I: [DEFENDANT] IS NOT GUILTY OF
            REFUSAL.
In support, she argues that her hearing impairment prevented her from hearing

the officer's request to submit a breath sample or his explanation of the

consequences of her refusal. We affirm.


1
   In order to obtain a conviction for refusal, the State must establish the
following four elements beyond a reasonable doubt:

            (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.

            [State v. Marquez, 202 N.J. 485, 503 (2010) (citing
            N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:4-50.4a(a); State v.
            Wright, 107 N.J. 488, 490 (1987)).]
                                                                         A-2506-17T3
                                       2
      The evidence presented at trial revealed that on September 21, 2016, at

approximately 9:18 p.m., Evesham Township Sergeant Justin Graff conducted a

motor vehicle stop of defendant's vehicle after observing various motor vehicle

violations.     Upon requesting her driving credentials, Graff noticed that

defendant, then seventy-four years old, had "blood[shot]" and "watery" eyes.

He also "detect[ed] an odor of . . . alcoholic beverage coming from inside of the

vehicle," prompting him to ask defendant if she had consumed any alcohol prior

to operating the vehicle. Defendant admitted "that she had a glass of wine at

dinner at TGI Fridays[,]"2 and Graff noted that defendant's speech was "slow

and slurred."

      Based on these observations, Graff administered field sobriety tests,

which defendant was unable to perform. Prior to each test, Graff provided

defendant with complete verbal instructions along with a demonstration of the

test. According to Graff, at no point did defendant give him any indication that

she was having trouble hearing him. When Graff inquired whether she had any

injuries that would limit her ability to perform the tests, defendant responded



2
   Defendant later testified she had "two glasses of white wine" at dinner.
Additionally, while she informed Graff she had consumed these glasses within
a two-hour span, she testified she was at dinner for approximately four hours.


                                                                         A-2506-17T3
                                       3
"that she had some arthritis" in "her left foot."      The entire encounter was

recorded on Graff's mobile video recorder (MVR), which was played in court

during the trial.

       Defendant was arrested for DWI, read her Miranda3 rights at the scene,

and transported to the police station. At the police station, Graff read defendant,

in its entirety, the New Jersey Attorney General's Standard Statement for Motor

Vehicle Operators (standard statement), 4 advising her that she was required to

submit breath samples for testing to determine alcohol content and would be

issued a separate summons if she refused. When Graff asked if "she was willing

to submit to the Alcotest . . . for breath testing," defendant replied that she

wanted an attorney. Graff "immediately read [defendant] the second paragraph"

of the standard statement, advising defendant that answering with anything other

than "a yes or no answer" would require him to charge her with refusal.


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
   The standard statement advises the DWI suspect that he or she has been
arrested for DWI; the law requires the submission of breath samples to test for
alcohol content; a record of the test will be made; subsequent independent
testing may be conducted at the suspect's expense; refusing to provide breath
samples will result in the issuance of a separate summons for refusal; there are
penalties for refusal; there is no legal right to have an attorney or physician or
anyone else present, and no legal right to refuse to give or delay giving samples;
and any ambiguous or conditional response will be treated as a refusal.


                                                                           A-2506-17T3
                                        4
Defendant again responded that she "want[ed] to talk to an attorney." Based

upon defendant's responses, Graff issued defendant a motor vehicle summons

for refusal to submit to a breath test 5 as well as other summonses.

      Defendant testified that her "hearing impairment" prevented her from

hearing "when [Graff] was reading all those things," but admitted she had no

trouble hearing Graff and answering his questions when he initially spoke to her

through the car window. She explained that she has "to wear . . . hearing aids"

but was not wearing them when she was stopped because she had removed them

in the restaurant due to "background noise." However, she acknowledged that

she failed to inform Graff "that [she] was hearing impaired" or that she normally

used hearing aids but did not have them on that night. She attributed her

omission to the stress of the encounter.

      Defendant testified further that she "never said no to a [b]reathalyzer," but

instead only "ask[ed] for an attorney."          She explained that she was

"overwhelmed" and "confused about the [Miranda] rights being read to [her]" in

relation to the standard statement because "nothing like this ha[d] ever happened



5
  At trial, the standard statement read to defendant and her recorded responses
were admitted into evidence. When defendant was first asked to submit breath
samples, her recorded response was, "[I'd] like an attorney[.]" When she was
asked the second time, her recorded response was, "I can't talk to an attorney[?]"
                                                                           A-2506-17T3
                                           5
to [her]" and "this was all new to [her.]" According to defendant, when Graff

first asked her to submit a breath sample,

             the thing I can best remember . . . is I was read my
             [Miranda] rights . . . right before he read that list of
             things . . . so I thought, . . . that's good because I'm so
             confused at this point and I thought it was saying that I
             was entitled to an attorney.

                   So . . . I said to [the officer] well, can I have an
             attorney . . . .

                   . . . I was confused about the [Miranda] rights
             being read to me . . . .

                    ....

                    . . . [H]e was reading me these things quickly and
             all that was sticking in my mind is . . . you can have an
             attorney to help you . . . .

Additionally, because she was in the process of "renewing" her "clinical

license," she thought it would be "helpful if [she] could just talk to an attorney."

      To support her defense, defendant presented expert testimony from Dr.

Elizabeth Patterson, a doctor of audiology, who had been treating defendant

since 2015 and diagnosed her with "moderate to severe sensorineural hearing

loss," requiring defendant to wear "bilateral hearing aids to help compensate for

that deficit."   Dr. Patterson explained that defendant's condition made it

"significant[ly] difficult[] [to] understand[] speech, especially . . . consonants [.]"


                                                                               A-2506-17T3
                                          6
She also stated that in recent testing, defendant "only understood [thirty-six]

percent of . . . the standardized test words" presented "in a quiet situation[],"

which "validate[d] the difficulty that [defendant was] having . . . when people

talk at normal conversational levels." Dr. Patterson explained further that there

are "cognitive strategies" employed "to compensate for the deficits in

understanding[,]" which "require energy[,] . . . attention[,] and focus," all of

which are compromised in "stressful situations" and would further reduce "that

[thirty-six] percent understanding."

      Immediately following the trial, the municipal court judge rendered an

oral opinion, finding defendant guilty of all the charges based on the "totality of

the circumstances." Regarding the refusal, the judge explained:

            [D]efendant said that she was confused because she had
            just been read the [Miranda] rights and then went into
            the refusal statement -- not really.

                    The [Miranda] was read back at the scene, the
            refusal was read in the station. It wasn't [Miranda] read
            and then refusal, and I think the confusion with regard
            to those is because she was impaired and she started to
            get nervous about her certification, . . . and I think that
            it all came together and she just said I want an attorney.

                  But then she's informed you don't have the right
            to do that at this stage, your answer is yes or no, will
            you submit. And then instead of saying yes or no, again
            she asks so I can't ask for a lawyer now? . . . .


                                                                           A-2506-17T3
                                        7
                   . . . I do find that she . . . heard and understood
            [the directions] because that's why she would be asking
            a question about it, because she heard what he said.

                  He said answer yes or no and that's why she's --
            wait, now I can't have an attorney? Because I've heard
            what you said. So again, I don't find that anybody is
            being misleading, I don't find that anybody is not telling
            the truth and she may have arthritis and she has a
            hearing loss.

                  I just don't find that that's why she was driving in
            the center of the road, nor do I find that that's why she
            wasn't following directions, nor do I find that that's why
            she didn't take the Alcotest.

      On appeal de novo, the Law Division judge made independent findings of

fact and conclusions of law based on the record and gave deference to the

municipal judge's credibility determinations. After weighing the evidence "de

novo[,]" the judge had reasonable doubt as to the DWI charge. However, he

found "[t]he police officer . . . had probable cause . . . to believe that . . .

defendant may be operating a motor vehicle under the influence of alcohol," and

arrested defendant for DWI, which triggered the requirement to "take a . . .

breath test if . . . asked to do so under these circumstances." Further, the judge

found beyond a reasonable doubt that defendant was read and understood the

standard statement, but gave a response that constituted a refusal under the

statute.


                                                                          A-2506-17T3
                                        8
      The judge explained "[t]his is a person who has given me no evidence to

. . . suggest that she didn't understand that rather clear, unequivocal language

that you have to give a 'yes' or 'no[.]' You can refuse and you will be penalized[,]

or you must submit to the test." The judge pointed out that defendant gave no

"indication[]" that she did not hear the officer and "had no difficulty answering

the officer's questions," which "support[ed his] finding that she understood

him." According to the judge, "[t]here did not appear to be any communication

problems. She spoke clearly to him and understood the conversation between

the two of them[.]"

      In distinguishing Marquez, the judge stated:

            [T]his is not a Marquez case; this is not a Spanish or a
            Polish or a Hungarian; this is a professional English-
            speaking, licensed therapist . . . .

                   ....

                  I don't buy the argument that . . . she didn't
            understand. Even with the matching up with the
            [Miranda], which was read earlier, . . . I don't find that
            [defendant] had any kind[] of problems understanding
            what she was required legally to do.

The judge imposed the requisite fines and penalties, as well as a seven-month

revocation of defendant's driving privileges, which the judge stayed for forty -

five days. This appeal followed.


                                                                            A-2506-17T3
                                         9
      Our review of the trial court's factual findings is limited to whether the

conclusions of the Law Division judge "could reasonably have been reached on

sufficient[,] credible evidence present in the record." State v. Johnson, 42 N.J.

146, 162 (1964). Unlike the Law Division, we do not independently assess the

evidence. State v. Locurto, 157 N.J. 463, 471 (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

exceptional showing of error." Ibid. "However, no such deference is owed to

the Law Division or the municipal court with respect to legal determinations or

conclusions reached on the basis of the facts." State v. Stas, 212 N.J. 37, 49

(2012).

      Based upon these principles and our review of the record, we are satisfied

that the Law Division judge's finding of guilt could reasonably have been

reached on sufficient, credible evidence present in the record. 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


                                                                         A-2506-17T3
                                      10
reasonable grounds to believe that a motorist has been operating a motor vehicle

while under the influence of alcohol. State v. Mulcahy, 107 N.J. 467, 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, triggering a mandatory

suspension of the motorist's driving privileges.

      A police officer's request to a motorist to submit to a breath test is

statutorily mandated. N.J.S.A. 39:4-50.2(e) provides that "[t]he police officer

shall . . . inform the person arrested of the consequences of refusing to submit

to such test in accordance with [N.J.S.A. 39:4-50.4a]" and "[a] standard

statement . . . shall be read by the police officer to the person under arrest." The

Legislature authorized the standard statement as a procedural device to inform

motorists of "the mandatory nature of the [breath] test, their limited rights to

counsel for purposes of the test, and the need for unequivocal, affirmative

consent." State v. Widmaier, 157 N.J. 475, 489 (1999). 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.




                                                                            A-2506-17T3
                                        11
337, 344 (App. Div. 2007) (quoting Widmaier, 157 N.J. at 497), aff'd as

modified, 196 N.J. 537 (2008).

      Here, upon defendant's arrest for DWI, and after being advised of her

Miranda rights, Graff followed, to the letter, the proper procedures for informing

defendant of her obligation to submit to a breath test by reading, in its entirety,

the standard statement as required under N.J.S.A. 39:4-50.2(e). By responding

that she wanted an attorney and failing to heed Graff's warnings, defendant

failed to give the unequivocal consent required to avoid the proscription of the

refusal statute.

      Defendant argues that she "should have no less protection under the law"

because of "a hearing impairment" than the Marquez defendant "who did not

understand because of a language barrier[,]" particularly when "there is an

abundance of evidence to demonstrate" that she "did not understand the request

to submit a breath sample or consequences related to her failure to do so ." In

Marquez, the Court held that a suspected drunk driver who did not speak English

was not "inform[ed] of the consequences of refusal" when the police officer read

the standard statement to the defendant in English. 202 N.J. at 514.

      Here, as the Law Division judge concluded, Marquez is distinguishable

because there is substantial, credible evidence in the record that defendant heard


                                                                           A-2506-17T3
                                       12
and understood the clear and unequivocal language read to her from the standard

statement that any response other than a "yes" or a "no" constituted a refusal and

would result in the issuance of a separate summons. Indeed, defendant admitted

she had no trouble hearing Graff when he initially approached her vehicle. Had

the evidence supported her account that her hearing impairment prevented her

from "being informed" of the consequences of refusal, Marquez may have

applied by analogy.

      Instead, the evidence showed that defendant was confused and wanted to

talk to an attorney, particularly regarding the impact of the arrest on her

professional license. However, "it is not necessary for the State to prove that a

driver actually understood the warnings on a subjective level."       Id. at 513.

Indeed, "defendant's subjective intent is irrelevant in determining whether the

defendant's responses to the officer constitute a refusal to take the test" and

"voicing a mere 'preference' to have an attorney present, as defendant in the

instant case argues [s]he did, is a delay tactic that cannot be indulged."

Widmaier, 157 N.J. at 498. "If properly informed in a language they speak or

understand while sober, [as here,] drivers can be convicted under the implied

consent and refusal statutes." Marquez, 202 N.J. at 513.

      Affirmed.


                                                                          A-2506-17T3
                                       13
