SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0876-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PARAMJIT SINGH,

Defendant-Appellant.

__________________________

Submitted August 30, 2018 – Decided

Before Judges Rothstadt and DeAlmeida.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Municipal Appeal No. 

380992.

Levow DWI Law, PC, attorneys for appellant (Evan M. 

Levow, of counsel and on the brief; Sandra L. Battista, 

on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (John J. Lafferty, IV, Special Deputy 

Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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.

November 1, 2018
2

A-0876-16T2

Defendant, Paramjit Singh, appeals from his conviction following a trial 

de novo in the Law Division of refusal to submit to a chemical breath test, 

N.J.S.A. 39:4-50.4a. We affirm.

I.

At about 2:45 a.m. on March 17, 2015, Atlantic City police officer Robert 

Dessicino was dispatched to investigate a report of a man sleeping in a yellow 

van near Hartford and Fairmount Avenues. Dessicino, arriving about ninety 

seconds later, found no one at that location. He then spotted a yellow van 

approximately a block away.

Through the van's window, Dessicino saw defendant sleeping in the 

driver's seat with a wet spot in his groin area consistent with defendant having 

urinated on himself. The driver's seat was upright, the engine was running with 

the key in the ignition, an empty Whiskey bottle rested in the center console, 

and defendant was within arms' length of the steering wheel.

After several unsuccessful attempts, Dessicino woke defendant by yelling 

and banging on the van's window. Officer Lopez arrived on scene, and from the 

passenger side of the car, saw defendant's foot on the brake pedal. Lopez, 

observing defendant's watery, bloodshot eyes, and smelling alcohol on his 
3

A-0876-16T2

breath, placed defendant under arrest for driving while intoxicated, N.J.S.A. 

39:4-50.

Defendant agreed to take a breathalyzer test. Lopez gave defendant 

instructions on how to provide a breath sample. Although defendant stated that 

he understood the instructions, none of his eleven breath samples or two control 

samples were sufficient for the Alcotest to function. As a result, Lopez charged 

defendant with refusal to submit to a breath test. Although the refusal offense 

is set forth in N.J.S.A. 39:4-50.4a, the summons given to defendant listed only 

N.J.S.A. 39:4-50.2, a related statute that provides that all drivers consent to 

submit to a breathalyzer test when a police officer has reasonable grounds to 

believe that a driver has been operating or is in physical control of a motor 

vehicle while under the influence of alcohol in violation of N.J.S.A. 39:4-50.

1

Following a trial, a Municipal Court judge found defendant guilty of 

violating N.J.S.A. 39:4-50.4a. After hearing testimony from the officers on 

scene, and a witness produced by defendant, the court found beyond a reasonable 

doubt that: (1) defendant was in actual physical control of the van while under 

 

1 A copy of the summons is not included in defendant's appendix. The parties, 

however, do not dispute that the summons referenced N.J.S.A. 39:4-50.2, and 

not N.J.S.A. 39:4-50.4a.
4

A-0876-16T2

the influence of alcohol; (2) the officers had probable cause to believe that 

defendant was in actual physical control of the van while under the influence of 

alcohol; and (3) defendant refused to comply with the breathalyzer test by failing 

to produce sufficient breath samples. The court sentenced defendant as a thirdtime DWI offender to a ten-year suspension of driving privileges, eighteen 

months of ignition interlock once his driving privileges are restored, related 

fines, and twelve hours in the Intoxicated Driving Resource Center.

2

On appeal to the Law Division, the court reviewed the record of the 

Municipal Court and found defendant guilty of violating N.J.S.A. 39:4-50.4a. 

As was the case with the Municipal Court, the Law Division judge found beyond 

a reasonable doubt that: (1) defendant was in actual physical control of the van

while under the influence of alcohol; (2) the officers had probable cause to 

believe that defendant was in actual physical control of the van while under the 

influence of alcohol; and (3) defendant refused to comply with the breathalyzer 

test by failing to produce sufficient breath samples. The Law Division judge 

imposed the same sentence as did the Municipal Court judge. At no time during 

 

2 Defendant was also charged with reckless driving, N.J.S.A. 39:4-96, driving 

while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone, 

N.J.S.A. 39:4-50(g), and possessing an open container of alcohol in a motor 

vehicle, N.J.S.A. 39:4-51b. Those charges were dismissed prior to trial.
5

A-0876-16T2

the proceedings below did defendant argue that he was not on notice of the 

charge against him, or that the reference to N.J.S.A. 39:4-50.2 in the summons 

prejudiced his ability to provide a defense to the State's allegation that he refused 

to provide a breath sample for testing.

This appeal followed. Defendant makes the following arguments for our 

consideration:

POINT I

AS APPELLANT WAS WRONGFULLY CHARGED 

UNDER[] N.J.S.A. 39:4-50.2, THE REFUSAL 

CHARGE SHOULD HAVE BEEN DISMISSED. 

(ISSUE NOT RAISED BELOW).

POINT II

THERE IS NO PROBABLE CAUSE TO BELIEVE 

THAT APPELLANT OPERATED OR HAD THE 

INTENT TO OPERATE A MOTOR VEHICLE, AND 

HE SHOULD NOT HAVE BEEN CHARGED WITH 

REFUSAL.

POINT III

NO REFUSAL TO SUBMIT BREATH SAMPLES 

EXISTS IN THIS CASE, APPELLANT SUBMITTED 

TEN BREATH SAMPLES.

II.

We begin with defendant's contention that he was deprived of due process 

by having been charged with violating N.J.S.A. 39:4-50.2, but convicted of 
6

A-0876-16T2

violating N.J.S.A. 39:4-50.4a. Because defendant did not raise this argument in 

the trial courts, we review the question under the plain error standard. State v. 

Funderburg, 225 N.J. 66, 79 (2016). We will, therefore, disregard the error 

"unless it is of such a nature as to have been clearly capable of producing an 

unjust result." Ibid. (quoting R. 2:10-2; citing State v. Robinson, 165 N.J. 32, 

47 (2000)). "The mere possibility of an unjust result is not enough" to warrant 

relief. Ibid. (citing State v. Jordon, 147 N.J. 409, 422 (1997)).

The statute cited in defendant's summons, N.J.S.A. 39:4-50.2, provides:

(a) Any person who operates a motor vehicle on any 

public road, street or highway . . . in this State shall be 

deemed to have given his consent to the taking of 

samples of his breath for the purpose of making 

chemical tests to determine the content of alcohol in his 

blood; provided, however, that the taking of samples is 

made in accordance with the provisions of this act and

at the request of a police officer who has reasonable 

grounds to believe that such person has been operating 

a motor vehicle in violation of the provisions of 

[N.J.S.A.] 39:4-50 . . . .

. . . . 

(e) No chemical test, as provided in this section, or 

specimen necessary thereto, may be made or taken 

forcibly against physical resistance thereto by the 

defendant. The police officer shall, however, inform 

the person arrested of the consequences of refusing to 

submit to such test in accordance with section 2 of this 

amendatory and supplementary act [N.J.S.A. 39:4-

50.4a]. A standard statement, prepared by the chief 
7

A-0876-16T2

administrator, shall be read by the police officer to the 

person under arrest.

The statute defendant was convicted of violating, N.J.S.A. 39:4-50.4a, provides, 

in relevant part, that

the municipal court shall revoke the right to operate a 

motor vehicle of any operator who, after being arrested 

for a violation of [N.J.S.A.] 39:4-50 . . . shall refuse to 

submit to a test provided for in [N.J.S.A.] 39:4-50.2

when requested to do so, for not less than seven months 

or more than one year . . . unless the refusal was in 

connection with a third or subsequent offense under this 

section in which case the revocation shall be for ten 

years.

As our Supreme Court has held "[t]o identify all of the elements of a 

refusal offense, we must look at the plain language of both statutes because

although they appear in different sections, they are plainly interrelated." State 

v. Marquez, 202 N.J. 485, 501 (2010). Given that N.J.S.A. 39:4-50.2 and 

N.J.S.A. 39:4-50.4a "cross-reference one another internally" and "rely on each 

other substantively[,]" the two statutes "must therefore be read together." Id. at 

502. The Court has cautioned that "care should be taken to list . . . N.J.S.A. 

39:4-50.4a, the exact statutory provision applicable to breathalyzer refusal 

cases" in documents charging a defendant with refusal to provide a breath 

sample. State v. Cummings, 184 N.J. 84, 90 n.1 (2005).
8

A-0876-16T2

However, where "[n]o complaint has been raised concerning that error" 

and "no prejudice resulting from it" has been identified, dismissal of the charge 

is not required. Ibid. To hold otherwise would place "form over substance," an

approach disfavored in our State. State v. Fisher, 180 N.J. 462, 472 (2004); see 

also R. 3:7-3(a) ("[E]rror in the citation [to a statute] or its omission shall not be 

ground for dismissal of the indictment or accusation or for reversal of a 

conviction if the error or omission did not prejudicially mislead the defendant.").

Our review of the record confirms that defendant was not prejudiced by 

the State's citation of N.J.S.A. 39:4-50.2 instead of N.J.S.A. 39:4-50.4a in the 

summons charging him with refusal. The trial court transcripts, from both the

Municipal Court and the Law Division, show that defendant's counsel was aware 

his client was charged with refusal. He elicited testimony, objected to the 

introduction of evidence, and made legal arguments all directed at challenging 

the officers' basis for ordering defendant to submit to a breathalyzer test, and 

intended to frustrate the State's efforts to prove that his client refused to provide 

adequate breaths. At no point in either court was an objection made with respect 

to the statute cited in the summons. Nor do the transcripts reveal any apparent 

confusion on the part of counsel or the courts with respect to the charge alleged 

against defendant. We find in the record no harm to defendant resulting from 
9

A-0876-16T2

the reference to N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a in the 

summons.

We turn to defendant's argument that the officers lacked probable cause 

to order him to take a breathalyzer test. In order for a defendant to be found 

guilty of violating N.J.S.A. 39:4-50.4a, the State must establish beyond a 

reasonable doubt each of the following:

(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 

State v. Wright, 107 N.J. 488, 490 (1987)).] 

Defendant concedes factors (2), (3), and (4) above, and argues only that the 

officers lacked probable cause to believe defendant was operating the van while 

under the influence of alcohol.

"[P]roof of actual operation is not required" to sustain a conviction for 

refusal to submit a sample for a breathalyzer test. Wright, 107 N.J. at 490. Proof 

beyond a reasonable doubt that the officers had reasonable cause to believe the 

defendant had actual physical control of a vehicle while under the influence of 
10 A-0876-16T2

alcohol will suffice. Cummings, 184 N.J. at 95-96. The Municipal Court judge, 

after hearing the officers' testimony and weighing their credibility, found 

beyond a reasonable doubt that the officers had probable cause to believe 

defendant was in actual physical control of the van while under the influence of 

alcohol. The Law Division judge reached the same conclusion after reviewing

the Municipal Court record.

On appeal from a municipal court to the Law Division, the review is de 

novo on the record. R. 3:23-8(a)(2). The Law Division judge must make 

independent findings of fact and conclusions of law but defers to the municipal 

court's credibility findings. State v. Robinson, 228 N.J. 138, 144 (2017). Unlike 

the Law Division, we do not independently access the evidence. State v. 

Locurto, 157 N.J. 463, 471 (1999). The rule of deference is more compelling 

where, such 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. (citation omitted). "Therefore, appellate review of the 

factual and credibility findings of the municipal court and Law Division 'is 
11 A-0876-16T2

exceedingly narrow.'" State v. Reece, 222 N.J. 154, 167 (2015) (quoting 

Locurto, 157 N.J. at 470).

Our review of the record reveals sufficient credible evidence supporting 

the trial courts' fact findings and legal conclusions. Defendant was found in the 

driver's seat of a vehicle with the key in the ignition, engine running, and his 

foot on the brake. He was unconscious, smelled of alcohol, and had an empty 

bottle of whiskey next to him. These facts amply support the officers' probable 

cause to believe defendant was in actual control of the van while under the 

influence of alcohol.

The suggestion by defendant's counsel that defendant turned on the engine

of the van merely to keep warm was rejected by the trial courts. In addition, we 

find no support for the argument that defendant's conviction cannot be sustained 

absent a finding beyond a reasonable doubt that he actually operated the van 

while under the influence of alcohol, or intended to operate the vehicle. See

State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). 

Finally, defendant argues that the State did not prove beyond a reasonable 

doubt that he refused to provide a breath sample for chemical testing. He 

contends that he did not refuse because he agreed to take the test and attempted 

to comply by submitting eleven breaths. "[A] defendant's subjective intent is 
12 A-0876-16T2

irrelevant in determining whether the defendant's responses to the officer 

constitute a refusal to take the test." State v. Widmaier, 157 N.J. 475, 498 

(1999). "[A]nything substantially short of an unconditional, unequivocal assent 

to an officer's request that the arrested motorist take the breathalyzer test 

constitutes a refusal to do so." Widmaier, 157 N.J. at 497 (quoting State v. 

Bernhardt, 245 N.J. Super. 210, 219 (App. Div. 1991) (citations omitted)). 

Agreeing to a breathalyzer test, but providing insufficient breath samples can 

rise to the level of refusal. State v. Chun, 194 N.J. 54, 104, 105, 151 (2008).

To be valid, a breath sample must have both a minimum volume of 1.5 

liters, and be at least 4.5 seconds long. Id. at 97. "The Alcotest permits up to 

eleven attempts to collect two breath samples, after which, the only options that 

the device offers are 'terminate' or 'refusal.'" Id. at 99.

Here, defendant blew eleven times, with two control samples. He, 

however, never satisfied both the duration and volume requirements in any 

single attempt. While defendant achieved the duration requirement all but two 

times, he did not provide the requisite volume of breath. He offered no evidence 

that he was unable to produce a volume of breath necessary for chemical testing. 

We see no basis to disturb the findings of the Municipal Court and the Law 

Division that defendant refused to comply with the test.
13 A-0876-16T2

Affirmed.