14-2-2924 State v. McGrath, App. Div. (per curiam) (14 pp.)
Submitted by New Jersey DWI attorney, Jeffrey Hark
After a trial de novo in the Law Division, defendant appeals from his conviction for refusing to submit to a chemical breath test. Defendant argues the conviction should be reversed because the officer read the April 2004 version of the standard statement under N.J.S.A. 39:4-50.2(e), which omitted mention that, if convicted, the court would be required to order installation of an ignition interlock device.
The municipal court found defendant guilty of refusal, but found him not guilty of DUI. As a third or subsequent offender, the court suspended defendant’s driving privileges for ten years; required that he attend the Intoxicated Driver Resource Center for forty-eight hours; ordered installation of the ignition interlock until one year after restoration of driving privileges; and imposed monetary fines and penalties. The Law Division judge found defendant guilty anew and re-imposed the sentence of the municipal court, except the court did not require an ignition interlock, because defendant was not noticed of any interlock device when the statement was read.
The appellate panel affirms based on the Supreme Court’s subsequent decision in State v. O’Driscoll. The panel concludes that the omission of the ignition interlock requirement in the 2004 statement was not material in this case where defendant would not have likely felt more impelled to give a breath sample if the standard statement read had advised him that, if convicted, he would be required to install an ignition interlock. The panel remands for correction of the sentence to require the ignition interlock.