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

NOT FOR PUBLICATION WITHOUT THE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.
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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,1raising 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)).]
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A-2506-17T3

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. 
4

A-2506-17T3

"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 Miranda3rights 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),4advising 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. 
5

A-2506-17T3

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 test5as 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[?]" 
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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[.]" 
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A-2506-17T3

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? . . . .
8

A-2506-17T3

. . . 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. 
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A-2506-17T3

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 Englishspeaking, 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 fortyfive days. This appeal followed.
10 A-2506-17T3

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 
11 A-2506-17T3

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. 
12 A-2506-17T3

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 
13 A-2506-17T3

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.