One who remains silent in the face of possible arrest for a drunken driving-related offense should not have that decision used against him, the New Jersey Supreme Court ruled on Wednesday.

The justices unanimously held that courts below violated Manaf Stas’s right against self-incrimination when they allowed admission of evidence of his silence at the scene of an accident.

“We conclude that defendant was entitled to the protection of the constitutional, statutory and common-law privilege against self-incrimination in the quasi-criminal proceedings before the municipal court and the Law Division,” wrote Justice Anne Patterson for the court in State v. Stas, A-14-11.

Stas and an acquaintance, Joseph Putz, had been drinking at Duffy’s Tavern in Paterson on April 16, 2008. Putz told police Stas allowed him to drive his sister’s van because Stas was too drunk. But on the way to Putz’s house, Putz hit a parked car at about 3:15 a.m. As police arrived, the two men were stumbling around, and Putz told them that he had been driving because Stas was too drunk. Stas said nothing, other than to confirm that the van belonged to his sister.

At trial in Woodland Park Municipal Court, Putz changed his story and said Stas had been the driver, and Stas, who was not facing drunken driving charges, went along with that story. Municipal Court Judge Toni Damiano convicted Putz of drunken driving and Stas of allowing a person under the influence to drive his vehicle.

Both men were sentenced to 180 days in jail, 90 of which could be spent at an intoxicated driver’s resource center. He also suspended their licenses for 10 years.

After trial de novo, Passaic County Superior Court Judge Jared Honigfeld upheld the convictions and the Appellate Division affirmed, saying any discussion of Stas’ silence by Damiano was harmless error. Stas appealed to the Supreme Court.

“We hold that the Law Division’s use of defendant’s silence as substantive evidence of his guilt and for the purpose assessing credibility violated defendant’s federal constitutional privilege against self-incrimination, and the state statutory and common-law privilege against self-incrimination,” Patterson said.

She said that N.J.S.A. 2A:84A-19 and N.J.R.E. 503 clearly state that “every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or forfeiture of his estate.”

Patterson quoted Justice William Brennan’s opinion in In re Pillo, 11 N.J. 8 (1952). There, Brennan said that compelling a person to incriminate himself is “abhorrent to the instincts of an American” and that “while such a coercive practice may suit the purposes of despotic power … it cannot abide the pure atmosphere of political liberty and personal freedom.”

She cited the U.S. Supreme Court’s ruling in Berkemer v. McCarty, 468 U.S. 420 (1984), where the court ruled that a person under any form of custodial interrogation should be afforded Miranda rights, including the right to remain silent. The state Supreme Court extended that ruling to drunken-driving suspects in State v. Leavitt, 107 N.J. 534 (1987).

Patterson also cited State v. Deatore, 70 N.J. 100 (1976), where the court said “a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not.”

Stas was under no obligation to say anything to the officer, Patterson said.

“Under this Court’s jurisprudence, even silence that precedes the administration of Miranda warnings — if it is ‘at or near’ the time of defendant’s arrest — cannot be used for any purpose at trial,” she said.

Senior Assistant Passaic County Prosecutor Keith Hoffman says the Woodland Park prosecutor will have to decide whether to prosecute Stas again.

“The ruling is a fundamental reaffirmation of the right not to be convicted of any crime or quasi-crime based on silence,” Hoffman says.

Stas’ attorney, Wayne solo Ronald Fava, says that even though Stas had not been given his Miranda warnings or been placed under arrest while Putz was being questioned, he was not free to leave the scene and therefore not obligated to say anything to the investigating officer.

Woodland Park Municipal Prosecutor Ernest Fronzuto, of the Fronzuto Law Group in that town, was away from his office and unavailable for comment.