SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5612-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIELLE JAMARINO,

Defendant-Appellant.

____________________________

Submitted April 29, 2019 – Decided May 31, 2019

Before Judges Sabatino and Susswein.

On appeal from Superior Court, Law Division, Ocean 

County, Municipal Appeal No. 17-07.

John Menzel, attorney for appellant.

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel J. Marzarella, Chief 

Appellate Attorney, of counsel; William Kyle Meighan, 

Senior Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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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Defendant Danielle Jamarino appeals from her convictions for driving 

while intoxicated ("DWI") and for refusing to submit to a breath test ("refusal"). 

Defendant raises three issues on appeal. She contends, first, that the summonscomplaint that charged her with refusal was fatally defective because it 

mistakenly cited to N.J.S.A. 39:4-50.2 rather than to the correct citation of 

N.J.S.A. 39:4-50.4; second, that the Point Pleasant Beach Police Department 

lacked procedures to safeguard her right to get an independent blood analysis; 

and third, that the officer who administered the "standard statement" at the 

police station failed to read the final portion of the statement. 

All three contentions were addressed and rejected by the municipal court 

judge who conducted the bench trial and the Superior Court judge who 

conducted the trial de novo on defendant's appeal to the Law Division. We have 

considered each of defendant's contentions on appeal in light of the record and 

applicable legal principles and conclude that they are without merit. We 

therefore affirm the convictions for both DWI and refusal. 

I.

We rely on the trial record and the findings of the municipal court judge 

who conducted the bench trial and the Superior Court judge who heard the trial 
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de novo on appeal to the Law Division. We briefly summarize the facts elicited 

at trial to place our legal conclusions in context. 

On November 3, 2016, police received a report of a vehicle being driven 

erratically. Then-sergeant Gerald Quaglia1 observed defendant's vehicle pass 

his patrol car travelling in excess of the posted speed limit. He ordered 

defendant to pull over, and she complied, pulling into the parking lot of a diner. 

The officer noticed that her face was flush and her eyes were watery and 

bloodshot. He also detected the odor of alcohol on her breath. When questioned, 

she stated that she had consumed three or four glasses of wine.

Defendant had difficulty maintaining her balance as she exited her 

vehicle. Lieutenant Quaglia administered a battery of field sobriety tests, which 

she failed. For example, she recited the alphabet only up to the letter "T," at 

which point she had to start over. She could not perform the "walk and turn" 

test while keeping her arms at her side and walking heel-to-toe. Nor could she 

perform the one-legged-stand test. 

 

1 Sergeant Quaglia was promoted to the rank of lieutenant before the trial was 

heard and he was referred to at trial as Lieutenant Quaglia.
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Based on his observations, Lieutenant Quaglia arrested defendant for 

drunk driving and she was transported to the police station. There, Lieutenant 

Quaglia administered the Miranda2 warnings and read the "N.J. ATTORNEY 

GENERAL'S STANDARD STATEMENT FOR MOTOR VEHICLE 

OPERATORS (N.J.S.A. 39:4-50.2(e) (revised & effective July 1, 2012))." 

Paragraph No. 9 of that "standard statement" reads, "I repeat, the law requires 

you to submit samples of your breath for testing. Will you submit samples of 

your breath?" Defendant unequivocally answered "no" to that question. 

At the conclusion of the bench trial, the municipal court judge made 

specific findings regarding the credibility of the trial witnesses, stating:

I've sat in contemplation of these cases for well over 30 

years, and I've seen officers that lie. I've seen 

defendants that lie. I have to tell you, this lieutenant's 

testimony here today was the most credible testimony 

I've seen in a long time. I'm not swayed by anything 

[the defendant] tells this Court. I am satisfied that the 

credible version of what occurred on the date and time 

in question is that presented on behalf of the State. 

 Based on the foregoing facts elicited at the trial, the municipal court judge 

acquitted defendant of reckless driving, but found her guilty of DWI based on 

the lieutenant's observational evidence and found her guilty of refusing to 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966). 
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submit to a breath test. On a trial de novo to the Superior Court, the Law 

Division judge affirmed those convictions. 

Defendant was sentenced on the DWI conviction to revocation of driving 

privileges for ninety days, to attend twelve hours at an Intoxicated Driver 

Resource Center (IDRC), a $360 fine, $350 in surcharges, and $33 in court costs. 

Defendant was sentenced on her refusal conviction to revocation of driving 

privileges for seven months to be followed by six months during which she must 

use an alcohol ignition interlock device, to attend twelve hours at an IDRC, a 

$360 fine, $100 in surcharges, and $33 in court costs. The suspension of driving 

privileges and IDRC sentences were ordered to be served concurrently. 

Execution of the sentence, including suspension of defendant's driving 

privileges, has been stayed throughout the pendency of this appeal. 

II.

On appeal, defendant raises the following contentions:

I. THIS COURT SHOULD DISMISS 

COMPLAINT PPC-086217 CHARGING 

DEFENDANT WITH "REFUSAL" IN VIOLATION 

OF N.J.S.A. 39:4-50.2, BECAUSE REFERENCE TO 

THIS "IMPLIED CONSENT" STATUTE 

CONSTITUTES A FATAL DEFECT IN THAT THE 

STATUTE DOES NOT DEFINE AN OFFENSE.

II. THIS COURT SHOULD DISMISS 

ALLEGATIONS BASED ON DEFENDANT'S 
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FAILURE TO SUBMIT BREATH SAMPLES 

BECAUSE THE POLICE DEPARTMENT LACKED 

PROCEDURES NECESSARY TO PROTECT HER 

RIGHTS. 

III. THIS COURT SHOULD FIND DEFENDANT 

NOT GUILTY OF REFUSING TO SUBMIT BREATH 

SAMPLES BECAUSE THE EVIDENCE FAILED TO 

ESTABLISH BEYOND A REASONABLE DOUBT 

WHETHER SHE WAS PROPERLY ADVISED OF 

HER RIGHTS AND OBLIGATIONS CONCERNING 

THE SUBMISSION OF BREACH SAMPLES. 

A.

Defendant argues that the summons that charged her with refusal was 

fatally defective because it mistakenly cited to N.J.S.A. 39:4-50.2 rather than to 

N.J.S.A. 39:4-50.4. The State acknowledges the summons cites to the implied 

consent statutory provision in the motor vehicle code rather than to the statutory 

provision that actually defines the refusal offense. The legal question before us 

is whether this was merely a technical defect or whether instead it was a mistake 

of such magnitude as to require that we overturn defendant's refusal conviction. 

In State v. Cummings, 184 N.J. 84 (2005), the Supreme Court commented 

in a footnote that care should be taken to list N.J.S.A. 39:4-50.4(a) rather than 

N.J.S.A. 39:4-50.2 when charging a refusal offense. Id. at 90 n.1. The Court 

also indicated "we see no prejudice resulting from it [the incorrect citation in 

the complaint]." Ibid. 
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In the case before us, as in Cummings, greater care should have been 

exercised in listing N.J.S.A. 39:4-50.4(a) in the body of the summons. But also 

as in Cummings, Jamarino was not prejudiced by the citation error. Defendant 

offers no explanation as to how or why the faulty citation inhibited her ability 

to prepare and present a trial defense. It is hard to imagine how she might 

possibly have been confused as to what specific offense she had to answer to at 

trial. In State v. Marquez, 202 N.J. 485 (2010), the Supreme Court recognized 

that N.J.S.A. 39:4-50.2 and N.J.S.A. 39:50.4 are "plainly interrelated" and that 

they "not only cross-reference one another internally, but they also rely on each 

other substantively. They must therefore be read together." Id. at 501-02. 

Defendant relies on State v. Nunnally, 420 N.J. Super. 58 (App Div. 

2011), for the proposition that the citation error was more than a technical 

defect. Her reliance on Nunnally is misplaced, however, as the circumstances 

presented in that case are markedly different from the situation presented in this 

appeal. In Nunnally, the defendant held a commercial driver's license (CDL) 

and was arrested for operating a commercial vehicle while under the influence. 

Id. at 62. The summons, however, charged the defendant with the general refusal 

offense, N.J.S.A. 39:4-50.4, rather than the distinct offense set forth in a 

different part of the motor vehicle code that applies to operators of commercial 
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vehicles, N.J.S.A. 39:3-10.24. The summons could not be amended on the day 

of trial to reflect the correct CDL refusal offense because the ninety-day statute 

of limitations had expired. Nunnally, 420 N.J. Super. at 62-63.3

We concluded in Nunnally that the error in the charging instrument was 

not merely a technical defect because the material elements of the general refusal 

offense are substantively different from the elements of the CDL refusal offense. 

For example, the CDL refusal statute requires that police have probable cause 

to believe that the driver has a 0.04% blood alcohol content (BAC), which is a 

much lower threshold than the one that applies to the general refusal statute. In 

short, the charging instrument averred the wrong offense, charging a different 

substantive offense than the one that the defendant had been arrested for and 

that the State sought to prosecute at trial. 

We recognized in Nunnally that in order to prepare a defense, a defendant 

must know the offense with which he or she is charged. Id. at 66. In the 

circumstances presented in that case, the summons failed to provide the 

 

3 We noted in Nunnally that for future guidance, a commercial vehicle driver 

whose conduct violates both the general and CDL DWI statutes may be arrested 

and charged under both statutes. If the driver refuses a breath test after being 

advised of the consequences of refusal pertaining to both statutes, the driver may 

also be charged under both refusal statutes. Nunnally, 420 N.J. Super. at 63. 
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defendant with notice as to the specific offense that the State intended to 

prosecute at trial.

In the present case, in contrast, defendant was not charged with the wrong 

offense, that is, an offense different from the one for which she was arrested and 

eventually tried and convicted. Rather, the error in the charging instrument in 

the present case is that it refers to a statutory provision that does not define any 

offense at all. The provision cited in the charging instrument instead implements 

the so-called "implied consent" concept in our DWI enforcement jurisprudence, 

setting out the procedures police must follow for obtaining BAC samples when 

investigating a suspected violation of the refusal offense that is defined in 

another subsection of the motor vehicle code. However, the statutory provision 

that was listed in the summons that was issued to Jamarino explicitly crossreferences the correct statutory provision, that is, the subsection of the motor 

vehicle code that does define the refusal offense. 

Our determination in Nunnally that the charging instrument error was 

substantive and not merely technical was predicated on the self-evident 

proposition that in order to prepare a defense, a defendant must know the offense 

with which he or she is charged and must defend at trial. The error in that case 

was legally significant because the summons charged the wrong offense – one 
10 A-5612-17T4

that had different material elements – and thus had a clear capacity to mislead 

the defendant with respect to the material elements that the prosecutor needed 

to prove at trial. The fair notice concern at the heart of the Nunnally decision 

simply does not exist in the present case because defendant was not misled into 

believing that she was charged with any offense other than the refusal offense 

for which she had been arrested and ultimately tried. Accordingly, there is no 

reason to overturn defendant's refusal conviction. 

B.

Defendant contends that the Point Pleasant Beach Police Department 

lacked procedures to safeguard her right to get an independent blood 

examination pursuant to N.J.S.A. 39:4-50.2(c). That contention is clearly 

without merit because defendant never alerted police that she wanted an 

independent test. Accordingly, her statutory right to have an independent 

examination performed was not invoked and thus could not be violated. 

Defendant's reliance on State v. Broadly, 281 N.J. Super. 230 (Law Div. 

1992), is misplaced. In that case, the defendant went to a hospital and requested 

an independent blood test. The hospital refused to take the blood sample without 

authorization from the police and the police officer who was contacted by the 

hospital refused to give the authorization. Id. at 233-34. The Law Division 
11 A-5612-17T4

judge concluded that the absence of a departmental policy designed to 

implement and safeguard the option of getting an independent blood test 

deprived Broadly of the statutory right under N.J.S.A. 39:4-50.2(c) to have the 

examination conducted by the hospital staff who were waiting for police 

authorization that was never provided. 

The situation in the present case is markedly different from Broadly in 

that Jamarino never requested police to permit or facilitate independent testing. 

Absent a request to invoke the right to independent testing explained in 

paragraph No. 4 of the standard statement4that was read to her, the police would 

have no way of knowing that defendant wanted to have any such independent 

examination. Thus, even giving defendant the benefit of the assumption that she 

actually had a desire for independent testing at the time of her arrest, the fact 

that she did not communicate that desire is fatal to her claim on appeal. The 

right to independent testing established in N.J.S.A. 39:4-50.2(c) is not self-

 

4 Paragraph No. 4 of the standard statement reads: 

After you have provided samples of your breath for 

testing, you have the right, at your own expense, to have 

a person or physician of your own selection take 

independent samples of your breath, blood or urine for 

independent testing. 
12 A-5612-17T4

executing. A defendant cannot complain that police deprived her of a right 

under this statute that was never asserted. 

We believe that this issue is governed not by Broadly, but rather by the 

common sense reasoning in State v. Jalkiewicz, 303 N.J. Super. 430 (App. Div. 

1997). We noted in Jalkiewicz that to be entitled to relief, "it must be shown 

that the absence of established police procedures has interfered with or thwarted 

defendant's attempt to exercise the right to an independent examination." Id. at 

434. There was no such affirmative interference or thwarting in the case before 

us because there was no attempt to exercise the right to an independent 

examination. Just as the police in this case were given no opportunity to 

facilitate independent testing, they had no opportunity to impede it. What we 

are left with, therefore, is a totally hypothetical situation where a defendant 

belatedly asserts that she was denied a statutory right under circumstances where 

police could neither safeguard nor frustrate that right. 

Although defendant's failure to advise police that she wanted an 

independent BAC test provides reason enough to reject her contention, we would 

add in the interest of completeness that the plain language of N.J.S.A. 39:4-

50.2(c) suggests that the statutory right to independent testing can be invoked 
13 A-5612-17T4

only after a defendant has submitted to breath or blood testing at the direction 

of police. The statute provides:

In addition to the samples taken and tests made at the 

direction of a police officer hereunder, the person tested 

shall be permitted to have such samples taken and 

chemical tests of his breath, urine or blood made by a 

person or physician of his own selection. 

[Ibid. (emphasis added).]

 

The highlighted language indicates that the independent examination 

contemplated in the statute is to be in addition to, not in lieu of, the samples that 

are provided by a DWI suspect to police pursuant to N.J.S.A. 39:4-50.2. This 

interpretation of the statute is supported by our opinion in Jalkiewicz, where we 

noted that the relief for deprivation of the statutory right to secure an 

independent examination is the exclusion of the evidence obtained by the police. 

Jalkiewicz, 303 N.J. Super. at 433-34. That form of relief is inapposite, of 

course, where there is no BAC evidence to suppress by reason of defendant's 

unlawful refusal to submit to breath testing. 

This interpretation also is consistent with paragraph No. 4 of the standard 

statement that was read to defendant. That paragraph explains unambiguously 

that the right to an independent test arises "[a]fter you have provided samples of 

your breath for testing." See footnote 4. This interpretation of the implied-
14 A-5612-17T4

consent statute by the Chief Administrator of the Motor Vehicle Commission is 

entitled to deference. See Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 

52, 56 (App. Div. 2001) (an administrative agency's interpretation of statutes 

and regulations within its implementing and enforcing responsibility is 

ordinarily entitled to an appellate court's deference); see also State v. Spell, 196 

N.J. 537, 540 (2008) (deferring to authority of the Chief Administrator to 

prepare and revise the standard statement).

Finally, with respect to defendant's contention regarding the right to 

independent BAC testing, we note that it is not clear to us how this defendant 

would even know what the Point Pleasant Beach Police Department's procedures 

are for implementing N.J.S.A. 39:4-50.2. As noted above, the police were not

afforded the opportunity to demonstrate either the adequacy or inadequacy of 

their independent-testing procedures. What is clear to us is that it would be 

inappropriate on these facts to reverse a DWI conviction that was based on the 

observational testimony of a police witness found to be exceptionally credible,

predicated on a hypothetical deprivation of an unasserted right by a defendant 

who unlawfully refused to submit a breath sample. 
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C.

Defendant contends that the police did not read to her the last portion of 

the standard statement.5 That is true. But it is also true that the arresting officer 

was not required to read the last paragraph of the standard statement, in view of

defendant's unequivocal refusal to submit a sample of her breath. 

Lieutenant Quaglia testified that he read the standard statement to the 

defendant and that when he asked in paragraph No. 9 if she would submit the 

samples of her breath, she said "no" and wrote her response on the form as "no." 

It is not disputed that the officer did not read the last paragraph of the standard 

statement. 

 

5 The phrase "last portion" or "second portion" refers to the last two unnumbered 

paragraphs of the standard statement form that was used in this case. Those 

paragraphs read: 

If the arrested person does not respond, or gives any 

ambiguous or conditional answer short of an 

unequivocal "yes," the police officer shall read the 

following:

Your answer is not acceptable. The law requires that 

you submit samples of your breath for breath testing. If 

you do not answer with anything other than "yes," I will 

charge you with refusal. Now, I ask you again, will you 

submit to breath testing? 
16 A-5612-17T4

The municipal court judge rejected defendant's testimony in which she 

claimed that the standard statement had not been read to her at all. The 

municipal court judge found that, "There's no doubt in my mind that the officer 

read the statement to the defendant." The municipal court judge also found that 

defendant was "advised under the Standard Statement that she had an obligation 

to submit to a breath test and she unequivocally responded no." The judge added 

that "there is nothing equivocal about the word no which was the defendant's 

response at the time. So there was no reason to read the second portion of the 

standard statement." 

It is well-settled that we are to give deference to the factual findings of a 

trial court. In State v. Locurto, 157 N.J. 463 (1999), the defendant appealed a 

municipal court conviction to the Law Division, and the Superior Court judge's 

findings were predicated upon the credibility findings of the municipal court 

judge. In those circumstances, which are essentially the same as the 

circumstances in the present case, the Court in Locurto noted that:

The rule of deference is more compelling where . . . two 

lower courts have entered concurrent judgments on 

purely factual issues. 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.
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[Id. at 474.]

See also State v. Reece, 222 N.J. 154, 166-67 (2015) (appellate review of the 

factual and credibility findings of the municipal court and the Law Division is 

exceedingly narrow). It bears repeating that the municipal court judge took 

pains to highlight Lieutenant Qauglia's credibility, remarking that the 

lieutenant's testimony was the most credible that the judge had seen in a long 

time. We also note that the standard statement entered into evidence and 

provided to us in the appendix to defendant's brief clearly indicates that a single 

word, "no," was recorded as the written answer to question No. 9. 

The standard statement provides that the last paragraph need only be read 

to a DWI arrestee if he or she gives "any ambiguous or conditional answer short 

of an unequivocal 'yes.'" See footnote 5. We interpret that to mean that the last 

paragraph of the standard statement need not be read when the arrestee gives 

any unequivocal answer, be that answer yes or no. 

Defendant relies on a portion of our opinion in State v. Spell, 395 N.J. 

Super. 337, 348 (App. Div. 2007), for the proposition that officers must read the 

last paragraph of the standard statement whenever the defendant refuses to take 

a breath test upon request. As defendant now puts it, in Spell, the Appellate 
18 A-5612-17T4

Division made a "suggestion"6 when we remarked, "we think it prudent to hold 

that, effective on October 1, 2007, officers must read the additional paragraph 

of the form whenever the defendant refuses to immediately take the breathalyzer 

exam upon request." Ibid.

Defendant acknowledges that the Supreme Court expressly vacated the 

above-quoted portion of the Appellate Division opinion. Spell, 196 N.J. 537

(2008). Defendant nonetheless contends that the Supreme Court left the door 

open, arguing that the Supreme Court vacated that part of our decision only 

because "[t]he Appellate Division's holding that requires that police officers 

read that final, additional paragraph of the standard statement in all cases was 

not necessary to the determination of this case."7 Ibid. Defendant contends that 

 

6 Our opinion in Spell makes clear that this was not a mere suggestion. On the 

contrary, the opinion unambiguously describes the prospective requirement to 

read the last paragraph in all cases where an arrestee refuses to immediately take 

a breath test as "our holding." Spell, 395 N.J. Super. at 348. So too, the Supreme 

Court refers to this portion of our opinion as "the Appellate Division's holding." 

Spell, 196 N.J. at 537. 

7 There can be no doubt that the language in our opinion that would have 

required police to read the last paragraph whenever a defendant refuses to 

immediately take a breath test was not "necessary to the determination of the 

case" because that requirement was made prospective only effective October 1, 

2007 (our opinion in Spell was announced on July 31, 2007). We explicitly 

noted in this regard that "[b]y making our holding prospective, we avoid the 

problems of application to DWI arrests before that date and provide adequate 
19 A-5612-17T4

the Supreme Court did not "substantively disapprove" of a requirement to read 

the last portion in all cases, and she urges us in this appeal not only to resuscitate 

our previous holding but also tacitly requests us to make the new requirement 

retroactive so as to inure to her benefit. 

We do not agree with defendant that the Supreme Court vacated that 

narrow portion of the otherwise-affirmed Appellate Division opinion in Spell

solely because the redacted language was not necessary to the determination of

that case. In fact, the Supreme Court in the very next sentence of its opinion 

explained why it was deleting this language from the Appellate Division 

opinion, stating:

We take that action [vacating that portion of the 

Appellate Division opinion] because the Legislature 

has vested in the Chief Administrator of the Motor 

Vehicle Commission . . . the authority to determine the 

contents and procedure to be followed in respect of that 

standard statement. N.J.S.A. 39:4-50.2(e) (providing 

that the 'standard statement [that] shall be read by the 

police officer to the person under arrest' is to be 

prepared by the Chief Administrator of the Motor 

Vehicle Commission). Rather, in keeping with the 

express legislative allocation of responsibilities set 

forth in N.J.S.A. 39:4-50.2(e), we refer the procedure 

outlined by the Appellate Division to the Chief 

Administrator of the Motor Vehicle Commission for 

 

notice of the requirement." Spell, 395 N.J. Super. at 348. Thus, the new 

requirement would not have benefited the defendant, and thus by definition was 

not necessary to the result in that case. 
20 A-5612-17T4

consideration. See State v. Widmaier, 157 N.J. 475, 

498-99, 724 A. 2d 241 (1999) (recognizing that when 

'it may be in the interest of both law enforcement 

officials and the driving public to amend the standard 

statement in order to eliminate any ambiguity 

concerning a motorist's intent to submit to the test[,]' 

judiciary may 'recommend a modification to the 

instructions accompanying the statement[;]' it may 

'urge [that Chief Administrator of the Motor Vehicle 

Commission] consider revising the standard statement' 

as recommended; and it may 'encourage [that Chief 

Administrator] simplify and clarify' statement). And,

because the decision to amend the standard statement is 

vested in the sound discretion of the Chief 

Administrator, we do not retain jurisdiction over that 

aspect of this judgment. 

[Id. at 540.] 

So far as we are aware, the Attorney General8 has not amended the 

standard statement to require that the last paragraph be read in all cases. That 

being so, and for the reasons stated by the Supreme Court in Spell, it is not our 

place to impose such a requirement, either prospectively or retroactively. 

In sum, the law remains unchanged that the last portion of the standard 

statement is required to be read only when the arrested person has given an 

ambiguous or conditional response. In this instance, both the municipal court 

 

8

 Effective August 3, 2009, the responsibility for the promulgation of standard 

statements regarding implied consent to chemical breath test statutes was 

transferred from the Chief Administrator of the Motor Vehicle Commission to 

the Attorney General. 41 N.J.R. 2825(a).
21 A-5612-17T4

judge and Law Division judge found that defendant gave an unequivocal "no" 

when asked whether she would provide a breath sample. There is no basis to 

disturb that factual finding, which is amply supported by the record, and thus no 

basis to disturb the fact-sensitive legal conclusion that the officer was not 

required in these circumstances to read the last portion of the standard statement. 

Affirmed. The stay of execution of the sentence is vacated effective

twenty days after the issuance of this opinion, and defendant shall have twenty

days from the issuance of this opinion to surrender her driver's license to the 

municipal court.