                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2186-13T4

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                           January 27, 2016
v.
                                          APPELLATE DIVISION
IRIS QUINTERO,

     Defendant-Appellant.
——————————————————————————————

         Argued December 8, 2015 – Decided January 27, 2016

         Before Judges Hoffman, Leone and Whipple.1

         On appeal from Superior Court of New Jersey,
         Law Division, Union County, Municipal Appeal
         No. 6050.

         Greggory M. Marootian argued the cause for
         appellant.

         Kimberly L. Donnelly, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Grace H. Park,
         Acting Union County Prosecutor, attorney;
         NaSheena D. Porter, Special Deputy Attorney
         General/Acting   Assistant   Prosecutor,   of
         counsel and on the brief).

     The opinion of the court was delivered by

HOFFMAN, J.A.D.




1
  Judge Whipple did not participate in oral argument.          She joins
the opinion with counsel's consent. R. 2:13-2(b).
    Defendant appeals from her de novo conviction for refusal

to submit to a breath test, N.J.S.A.                      39:4-50.4a.         Defendant

argues     that    her     conviction      should    be     vacated     because      the

Attorney    General's         current    standard   statement       under      N.J.S.A.

39:4-50.2(e) is fundamentally deficient for not specifying the

mandatory minimum penalties for refusal.                    For the reasons that

follow, we affirm.

                                           I.

    On December 7, 2012, defendant consumed several vodka and

cranberry juice cocktails before driving her vehicle in Roselle

Park.    Defendant's tire blew out, but she continued driving on

the tire rim until the Roselle Park Police finally stopped her.

After    defendant       failed    street       sobriety     tests,     the     officer

transported       her    to    police     headquarters.           There,      defendant

refused to submit to a breath test, even after the officer read

the standard statement2 indicating the consequences if she did

not take the breath test.

    The      officer          charged     defendant        with     driving       while

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

2
   The full text of the "N.J. Attorney General's Standard
Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.2(e))
(rev.   &    eff.   July    1,   2012)"    can   be   found    at
http://www.njsp.org/divorg/invest/pdf/adtu/070912_dwi_standardst
atement.pdf.




                                           2                                   A-2186-13T4
breath test, N.J.S.A. 39:4-50.4a,3 and careless driving, N.J.S.A.

39:4-97.      In the Roselle Park Municipal Court on February 28,

2013, defendant pled guilty to DWI and entered a conditional

guilty    plea   to     the   refusal      charge,    reserving      her    right    to

challenge the sufficiency of the standard statement on appeal.4

On the DWI charge, the court imposed a $406 fine, $33 in court

costs, a $200 DWI assessment, a $75 Safe Neighborhood Services

Fund     assessment,     a      $50     Violent   Crimes     Compensation        Board

penalty,      twelve    hours    of     Intoxicated      Driver    Resource    Center

classes, and a three-month license suspension to run concurrent

with the refusal sentence.                On the refusal charge, the court

sentenced defendant to a $506 fine, a $100 DWI assessment, $33

in court costs, seven-month loss of license, and six months with

an ignition interlock.           The court stayed the refusal portion of

the sentence pending de novo appeal to the Law Division.

       On October 28, 2013, Judge Regina Caulfield found defendant

guilty and imposed the same sentence for defendant's refusal

conviction.      The judge memorialized her decision in a November

27,    2013    order,    which        further   stayed    the     refusal   sentence

pending this appeal.

3
  The e-ticket for this charge incorrectly listed the violated
statute as N.J.S.A. 39:4-50.2; however, this mistake has not
been raised as an issue in the instant appeal.
4
    The court dismissed the careless driving charge.



                                            3                                 A-2186-13T4
      Defendant presents the following issue in this appeal:

              THE   CHARGE   OF  REFUSAL   TO    SUBMIT  IS
              FUNDAMENTALLY FLAWED.   THE NEW JERSEY MOTOR
              VEHICLE STANDARD STATEMENT READ TO QUINTERO
              FAILED   TO   "INFORM   [QUINTERO]    OF  THE
              CONSEQUENCES OF REFUSING TO SUBMIT" AS
              REQUIRED BY [N.J.S.A. 39:4-50.2(e)].

                                      II.

      On this appeal, we do not review the fact-findings of the

Law Division, which are generally entitled to our deference.

State v. Johnson, 42 N.J. 146, 158-59 (1964).               Rather, we review

the court's legal determination regarding the sufficiency of the

standard statement.         Where, as here, the issues turn on purely

legal interpretations, our review is plenary.               State v. Adubato,

420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209

N.J. 430 (2012).

                                      A.

      New Jersey's drunk-driving legislation is designed "to curb

the     senseless   havoc    and   destruction     caused     by   intoxicated

drivers."      State v. Marquez, 202 N.J. 485, 496 (2010) (quoting

State    v.   Tischio,   107   N.J.   504,   512   (1987)).        "To    improve

enforcement efforts and address the high rate of refusal by

motorists who declined to submit to blood-alcohol tests, the

Legislature in 1966 enacted the implied consent law, N.J.S.A.

39:4-50.2, and the refusal law, N.J.S.A. 39:4-50.4a."                    State v.

O'Driscoll, 215 N.J. 461, 472-73 (2013) (citing Marquez, supra,



                                       4                                 A-2186-13T4
202 N.J. at 497).            Accordingly, all motorists on New Jersey

roads are "deemed to have given . . . consent" to a breath test

under the implied consent law.                Id. at 473 (citing L. 1966, c.

142, § 2 (codified as amended at N.J.S.A. 39:4-50.2)).

         The implied consent law was amended in 1977 to require that

"[a] standard statement, prepared by the chief administrator,

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

to inform him or her of the consequences of refusing to submit

to   a    breath    test.      N.J.S.A.       39:4-50.2(e).        In   2009,    the

responsibility       for     the   promulgation     of   that      statement     was

transferred to the Attorney General.                41 N.J.R. 2825(a).           Our

Supreme Court has explained that "the refusal statute requires

officers     to    request    motor   vehicle     operators   to    submit      to   a

breath test; the implied consent statute tells officers how to

make that request."          Marquez, supra, 202 N.J. at 501.             Marquez

also identified the elements of a refusal conviction:

             (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.

             [Id. at 503 (citations omitted).]




                                          5                               A-2186-13T4
      Pursuant to the implied consent law, N.J.S.A. 39:4-50.2(e),

the Attorney General's current standard statement (revised and

effective July 1, 2012), to be read to motor vehicle operators

to inform them of the consequences of refusing to submit to a

breath test, provides, in pertinent part:

           5.     If you refuse to provide samples of
                  your breath, you will be issued a
                  separate summons for the refusal.      A
                  court may find you guilty of both
                  refusal and driving while intoxicated.

           6.     If a court finds you guilty of the
                  refusal, you will be subject to various
                  penalties, including license revocation
                  of up to 20 years, a fine of up to
                  $2000, installation of an ignition
                  interlock,   and    referral   to    an
                  Intoxicated  Driver   Resource  Center.
                  These penalties may be in addition to
                  penalties imposed by the court for any
                  other offense of which you are found
                  guilty.

                                    B.

      Defendant   contends   that   the    Attorney   General's   standard

statement is defective because it does not inform motorists of

the   mandatory   minimum    penalties.      In   particular,     defendant

argues that the standard statement "does not adequately explain

and delineate the penalties for a refusal conviction" because

the statement explains the license loss exposure as "license

revocation of up to 20 years."           This is problematic, defendant

argues, because "defendant was not told that she would face a




                                    6                              A-2186-13T4
license loss for a minimum of seven months" and that "up to 20

years can mean anywhere between 0 days to 20 years."                   Similarly,

defendant argues that the standard statement is flawed because

it explains that defendant will be subject to "a fine of up to

$2000" while failing to mention that a defendant's first refusal

offense is "not less than $300 or more than $500 for a first

offense."        See N.J.S.A. 39:4-50.4a.        The statement is similarly

flawed,       defendant    continues,      because    it   merely   mentions       the

"installation        of   an    ignition    interlock,"     while   the      refusal

statute mandates an ignition interlock for a first offender for

"not less than six months or more than one year." See N.J.S.A.

39:4-50.17(a)(1).

        Our    Supreme    Court   has    previously    recognized     that     "as    a

question of law, the authority to define the contents of the

Standard Statement vests in the Executive Branch, as delegated

by the Legislative Branch."              State v. Schmidt, 206 N.J. 71, 87

(2011); see also Marquez, supra, 202 N.J. at 511 ("The executive

branch, and not the courts, is best-equipped to respond to those

concerns       and   still     satisfy   the   statutory    command    to     inform

.   .   .     motorists   of    the   consequences    of   refus[al]    .     .   .   .

We defer to the executive branch agency . . . to fashion a proper

remedy . . . .") (internal quotation marks and citation omitted).




                                           7                                 A-2186-13T4
       Recently the issue of whether the standard statement was

defective, "because it does not inform drivers of the mandatory

minimum period of time their license will be suspended if they

refuse,"     was   brought      to   our   Court's     attention.         O'Driscoll,

supra, 215 N.J. at 480.              However, because this issue was raised

by an amicus curiae, the Court in its discretion "[did] not

opine in any way on the content of the current statement."                          Id.

at   479-80.        O'Driscoll,       however,       still    can    illuminate     the

current issues and provide some guidance with respect to the

standard statement at issue.

       In    O'Driscoll,       our   Court       reinstated    a    DWI   defendant's

refusal      conviction    after      determining      that    the    misinformation

provided      to   him   was    inconsequential        and    consisted     of    minor

discrepancies that were not material to the defendant's decision

to refuse the breath test.              Id. at 479-80.          In particular, the

police officer mistakenly read from an outdated form and told

the defendant that if he refused, the minimum period of license

revocation was six months, not seven; the minimum fine was $250,

not $300; and the maximum fine was $1000, not $2000.                             Id. at

465.    The officer, however, did correctly tell defendant that

his license could be revoked for up to twenty years.                      Ibid.     The

Court held that the officer's mistakes were inconsequential, and

that   the    officer     informed     defendant      "of     the    consequences    of




                                             8                               A-2186-13T4
refusal      in    a   manner       that    should       have     impelled       a       reasonable

person    to      comply."          Id.    at    479.        In   particular,            the    Court

continued, it was "difficult to see how the minor discrepancies

in    this    case     could     have      influenced         [defendant's]              decision."

Ibid.        As   such,   "courts          are    to    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.        An immaterial variation from the standard form does

not require reversal of a conviction for refusal."                               Id. at 466.

       With this guidance, we agree with Judge Caulfield that the

standard       statement       is    sufficient,         and      we    affirm       defendant's

refusal conviction.             Defendant's argument that she was not given

an accurate picture of the penalties she faced as a first-time

offender lacks merit.               Rather, as Judge Caulfield observed:

               It defies logic to assume that defendant[,]
               having refused a breath test knowing that
               she could be fined up to $2,000 and lose her
               license for 20 years[,] would have submitted
               to a . . . breath test, if she was told her
               license might be revoked for only seven
               months with a fine of only $500.

We are satisfied that the current standard statement satisfies

the     statutory      mandate        —     that       is,   informing       motorists            and

impelling compliance — by adequately informing drivers of the

maximum       potential        license           revocation        and     fine,          and    the

possibility of ignition interlock, that they face for refusal.




                                                  9                                        A-2186-13T4
In so ruling, we note that adding other details, including the

differing        mandatory   minimum     and    maximum    penalties   for     first

offenders, second offenders, and certain third offenders, may

run the risk of submerging the most significant penalties in

those details.          Such a statement could confuse persons who are

suspected of being under the influence, whose number of prior

offenses may be unclear, and dilute the persuasive effect that

is a central purpose of the standard statement.

       Moreover, defendant, having refused after being informed of

the maximum penalties, has not shown that she "reasonably would

have made a different choice and submitted to a breath test" had

additional information been provided.                    O'Driscoll, supra, 215

N.J.   at   466.        It   is    implausible    that    defendant    would    have

submitted to the breath test if informed of mandatory minimums

for a first offender.             Accordingly, we conclude that the current

standard     statement       is    not   defective   for     failing   to    inform

drivers     of    the   mandatory     minimum    penalties    for   refusal.      The

standard statement provides sufficient information for drivers

to make an objectively reasonable choice on whether to submit to

a breath test.

       Affirmed.




                                          10                                A-2186-13T4
