State v. Stas, A-14 September Term 2011; Supreme Court; opinion by Patterson, J.; decided September 12, 2012. On certification to the Appellate Division. [Sat below: Judges Cuff and Simonelli in the Appellate Division; Judge Honigfeld in the Law Division.] DDS No. 14-1-7658 [33 pp.]

Defendant Manaf Stas and Joseph Putz were involved in an auto accident in a minivan owned by defendant’s sister minutes after leaving a bar where both had been drinking. After police arrived on the scene, Putz told the investigating police officer that he had been driving the van at the time of the accident. After failing field sobriety tests, Putz was arrested and charged with driving while intoxicated in violation of N.J.S.A. 39:4-50(a).

Defendant stood nearby in silence as Putz told police that he had driven the car and was arrested. Given Putz’s admission that he was the driver, the police did not subject defendant to field sobriety tests or administer a Breathalyzer. Instead, defendant was given a summons for allowing an intoxicated person to operate a vehicle over which he had custody and control, in violation of 39:4-50(a).

Defendant and Putz were jointly tried in municipal court. Contrary to the story Putz gave police immediately after the accident, he testified that defendant had been the driver and that his statement to police at the scene had been a lie. Defendant testified that he, not Putz, had been driving at the time of the accident.

Rejecting this testimony, the municipal court found defendant guilty of allowing an intoxicated driver to drive a car under his custody and control. Putz was found guilty of DWI. The municipal court relied in part on the fact that defendant had stood by in silence while Putz told police that he was the driver and was arrested. Defendant appealed, and the Law Division conducted a de novo review. Relying on defendant’s silence while Putz was questioned and arrested, which it construed to be an admission on defendant’s part, it convicted defendant.

On appeal, the Appellate Division affirmed. It held that Putz’s statement to police that he was driving was admissible against both defendants as a statement against interest under N.J.R.E. 803(c)(25). It did not decide whether the Law Division’s reliance on defendant’s silence was error because, in its view, the record contained more than sufficient evidence apart from his silence to support his conviction. The panel concluded that if the Law Division’s invocation of defendant’s silence constituted error, it was harmless.

On appeal, defendant argues that the Law Division should not have relied on his silence as proof that he allowed an intoxicated driver to use the van and that the Appellate Division was wrong in concluding that any error arising from such reliance was harmless.

Held: 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. The Law Division’s use of defendant’s silence as substantive evidence of his guilt and for the purpose of assessing his credibility violated his federal constitutional privilege and his state statutory and common-law privilege against self-incrimination, and given the prominent role that defendant’s silence played in his conviction, the Law Division’s reliance on his silence was clearly capable of producing an unjust result, constituting plain error.

The court says the Law Division’s reliance on defendant’s silence implicates his Fifth Amendment privilege against self-incrimination and his New Jersey statutory and common-law privilege against self-incrimination. The privilege against self-incrimination protects individuals who are tried for DWI-related offenses in quasi-criminal proceedings such as the municipal court trial at issue here.

After reviewing relevant federal and state case law, the court distills the principles that govern this case. Under federal law, the use for any purpose at trial of a defendant’s silence after his arrest and the administration of Miranda warnings violates his privilege against self-incrimination and his right to due process. Under New Jersey law, even silence that precedes Miranda warnings — if “at or near” the time of a defendant’s arrest — cannot be used for any purpose at trial. However, pre-arrest silence that is not “at or near” the time of arrest, when there is no government compulsion and the objective circumstances show that a reasonable person in a defendant’s position would have acted differently, can be used to impeach that defendant’s credibility with an appropriate limiting instruction. It cannot be used as substantive evidence of guilt.

Applying these principles, the court concludes that the Law Division’s use of defendant’s silence as substantive evidence of his guilt and to assess his credibility violated his privilege against self-incrimination. Defendant’s silence occurred “at or near” his receipt of a summons at the scene for a violation of N.J.S.A. 39:4-50, the functional equivalent of an arrest for purposes of this analysis. His silence thus should not have been used for any purpose and the Law Division’s reliance on that silence constituted error.

In the absence of an objection by defendant before the Law Division, the court reviews for plain error.

The Law Division could not convict defendant unless it concluded beyond a reasonable doubt that Putz had been the driver. The state’s evidence consisted of Putz’s statement to police, recanted at trial, and defendant’s silence. The Law Division prominently featured defendant’s silence in explaining the basis for its decision. Defendant’s silence cannot be isolated from the remaining evidence considered by the court. Because the improper evidence of silence was a significant factor in defendant’s conviction, the court concludes that it was clearly capable of producing an unjust result. It therefore reverses and remands to the municipal court for a new trial.

Chief Justice Rabner and Justices LaVecchia, Albin and Hoens join in Justice Patterson‘s opinion. Judge Wefing, temporarily assigned, did not participate.

For appellant — Ronald S. Fava. For respondent — Keith E. Hoffman, Senior Assistant Prosecutor (Camelia M. Valdes, Passaic County Prosecutor).