State v.O’Driscoll, A-7 September Term 2012; Supreme Court; opinion by Rabner, C.J.; decided September 18, 2013. On certification to the Appellate Division. [Sat below: Judges Yannotti and Espinosa in the Appellate Division; Judge Ironson in the Law Division.] DDS No. 14-1-1362 [26 pp.]

A police officer arrested defendant William O’Driscoll after watching him drive his SUV across the center line of the road — twice — and then fail a number of field tests. Consistent with the implied consent and refusal laws, N.J.S.A. 39:4-50.2 and 39:4-50.4a, the officer read defendant a standard statement designed to inform him of the consequences of refusal and to impel him to provide a sample of his breath.

Although the officer correctly told defendant that if he refused, his license could be revoked for up to 20 years, he read from an outdated form and misstated three other parts of the potential penalty: the officer said the minimum period of revocation was six months, not seven; the minimum fine was $250, not $300; and the maximum fine was $1,000, not $2,000.

The officer then twice asked defendant if he would submit a breath sample. Defendant twice responded that he did not know what to do. Defendant was then charged with driving while intoxicated, refusal to submit to a breath test, reckless driving, failure to drive on the right side of the roadway, and possessing an open container of alcohol in a motor vehicle.

Both the municipal court and the Law Division found that the discrepancies in the statement read to defendant were immaterial and convicted him of refusal.

The Appellate Division reversed. Relying on State v. Marquez, 202 N.J. 485 (2010), and State v. Schmidt, 206 N.J. 71 (2011), the panel concluded that the State had failed to inform defendant of the consequences of refusal.

The state’s petition for certification, which addressed only the refusal conviction, was granted. The state argues that defendant’s conviction for refusal should be reinstated because he was adequately informed of the consequences of refusing to submit to a breath test and the officer’s inadvertent deviation from the standard statement was inconsequential.

Held: To determine whether a police officer’s error in reading the standard statement regarding the consequences of refusing to submit a breath sample requires reversal of a conviction for refusal, courts should consider whether the error is material in light of the statutory purpose to inform motorists and impel compliance. To do so, they 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. Because the errors in this case were not material and could not have reasonably affected defendant’s choice to refuse to provide a breath sample, his conviction for refusal to take a breath test is reinstated.

The Legislature in 1966 enacted the implied consent and refusal laws to improve enforcement efforts and address the high rate of refusal by motorists who declined to submit to blood-alcohol tests. Because the refusal statute’s penalties were insufficient to encourage people arrested for drunk driving to submit a breath sample and to enable law enforcement to obtain objective scientific evidence of intoxication, the Legislature increased the penalties in 1977, and periodically thereafter.

As part of the 1977 amendment to the implied consent law — which required police officers to inform drivers of the consequences of refusal — the Legislature also directed that police read to the person arrested a standard statement, now prepared by the attorney general.

Marquez explained that the refusal statute requires officers to request drivers to submit to a breath test, while the implied consent statute tells officers how to make that request. It noted that officers are to read the standard statement to inform drivers of the consequences of refusal.

The court says neither the majority nor the dissent in Marquez suggested that any deviation from the written standard statement would automatically amount to a failure of proof. Neither required that the statement be recited perfectly or even addressed the question. Nor does the language of the implied consent statute require absolute precision.

The Court says that if an officer misreads part of the statement, reversal of a refusal conviction is not necessarily required. Instead, a court must consider whether the error is material in light of the statutory purpose to inform motorists and impel compliance.

Noting that the Supreme Court has never insisted that Miranda warnings be given in the exact form described in that decision but instead has held that the proper inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda, the court says the same type of analysis — one that focuses on whether the state has informed the defendant of material facts — should apply when a police officer reads the wrong version of the standard statement or misreads the current form. Under that approach, discrepancies that would not have influenced a reasonable driver’s choice to submit to a breath test would not be considered material and would not require reversal of a conviction for refusal.

Applying these principles, the court finds that the officer’s mistakes were inconsequential. As the Legislature intended, he used the standard statement to inform defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply. It is highly doubtful that the errors reasonably could have affected defendant’s choice. Because the errors were not material, the court finds that the state satisfied the elements of the refusal statute.

The court therefore reverses the judgment of the Appellate Division and reinstates defendant’s conviction.

Justices LaVecchia, Albin, Hoens and Patterson and Judges Rodriguez and Cuff (both temporarily assigned) join in Chief Justice Rabner‘s opinion.

For appellant — Boris Moczula, Assistant Attorney General (Jeffrey S. Chiesa, Attorney General). For respondent — Colin E. Bonus (Law Offices of Jonathan F. Marshall; Jeff E. Thakker of counsel). For amicus curiae New Jersey State Bar Association — Jeffrey E. Gold (Ralph J. Lamparello, President; Kevin P. McCann, Immediate Past President, of counsel; Gold and Kimberly A. Yonta on the brief).