New Jersey DWI Attorney Blog

There are still significant opportunities to defend New Jersey DWI Refusal charges after the New Jersey Supreme Court's decision in State v. Schmidt on May 26, 2011. The most important thing to remember when addressing the defense of a refusal charge is, never assume that simply being charged with a refusal means that a conviction will automatically follow.

Understanding of the law and the individuals involved is key to attempting success in what appears to be a very difficult charge to defend.

Schmidt now states the general proposition that if you blew into the machine but didn't give a complete sample that the machine "accepted", you cannot claim that the officer should have then read you the second part of the implied consent warning as a defense to the charge. This doesn't mean, however, that you will automatically lose your case and suffer the consequences of a refusal charge.

If you can demonstrate facts and circumstances to the prosecutor, the police officer, and judge that show that you were not being obstinate, obstructionist, or generally difficult, you may be able to convince the justice system that the refusal charge should not stand against you. These facts or circumstances are specific to each situation, but might include physiological reasons why you could not submit an adequate sample of breath into the machine.

Perhaps you suffer from asthma, or you are a heavy smoker. Did you have a cold or upper respiratory issue? Your family doctor can test you for lung capacity, and the results of that testing can be used to demonstrate that you had an objective issue that prevented you from properly blowing into the machine.

You may have been so upset at the time that your anxiety kept you from breathing properly. While no one is comfortable in these situations, if you suffer from a pre-existing anxiety condition, you may be able to use that information to your advantage in a case like this.

All of this requires forensic activity by your New Jersey DWI lawyer to determine what defenses are available to you under the circumstances presented. You want to make sure that you are represented by someone who is appropriately aggressive in seeking to protect your rights and your future.

Success can be obtained in New Jersey DWI Refusal cases, under the right circumstances.

Until May 26, 2011, there was a defense to a refusal charge that you had attempted to blow into the machine, but the machine did not register or accept the breath sample. However, this is no longer a defense.

This is how the defense worked: Implied consent warnings are eleven paragraphs of written warnings read to you by the police officer in the police station prior to the breath testing. The warning states that if you do not submit to the breath testing you will be given a separate ticket for refusal with separate penalties from a DWI conviction. If you started to give a breath sample, but for any reason were unable to give a complete sample that the machine accepted, the officer would likely have charged you with refusing to submit to the testing. However, if the officer did not read the "Additional Statement" that is printed after the eleven paragraphs, then you would claim that you were not adequately warned at that point that failure to complete the testing would result in a refusal charge.

This defense was intuitively sound, since you had not actually refused to give a breath sample, and had in fact provided a sample. The officer should have separately advised you that you would be subject to a refusal charge where you had already blown. Then, you would have been on notice to continue to attempt to blow into the machine, rather than stop, subjecting yourself to a separate suspension for refusal.

The New Jersey State Supreme Court in State v. Schmidt put that defense to rest. Mr. Schmidt gave three breath samples and then was unable to complete the testing. The court stated that because Mr. Schmidt "unequivocally consented" to the breath test, his later failure or inability to complete the breath testing did not render his earlier consent ambiguous or conditional, requiring additional warnings to be given to him.

In other words, once you submit to the breath testing, you have to complete it.

However, this may not be absolute. There are defenses to a refusal charge. If you can establish breathing difficulty, such as asthma or diminished lung capacity, you may still have a defense to a New Jersey DUI refusal charge. The court's action was aimed at situations where individuals were seeking to "defeat" the testing process.

Levow & Associates has had success with refusal defenses, such as this. It is important to hire a qualified New Jersey DWI DUI attorney to evaluate your case to see what defenses you may have.