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.

If you are charged with refusal to submit to breath testing in a New Jersey DWI / Refusal case, but you don't speak English well enough to understand the implied consent warning, you may have a defense to the refusal charge. Refusal convictions require proof that the officer requested that you submit to a chemical breath test and informed you of the consequences of refusing to do so. Even though motorists are deemed to have given their consent to submit to breath testing, the officer must still inform the driver of the consequences of refusal.

In a case decided by the New Jersey Supreme Court called State v. Marquez, the Court stated that the obligation to "inform" requires more than a recitation of English words to a non-English speaker. "Knowledge cannot be imparted in that way." The officer must convey the implied consent warning in a language the person speaks or understands.

The point of the officer advising a driver of the penalties for refusal "is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge." That aim cannot be accomplished, according to the court, by reading words in a language the motorist does not understand.

The Marquez court said that "reading the standard statement to motorists in a language they do not speak is akin to not reading the statement at all. The latter scenario renders a conviction defective."

In a published survey from 2008, Spanish translations, for example, accounted for 74,762, or about 85%, of the translated court sessions in New Jersey. The next most frequently translated languages in New Jersey courts were Portuguese (2,127 events), Polish (1,404), Korean (1,255), Haitian Creole (1,157), American Sign Language (1,118), Chinese/Mandarin (942), Russian (804), Arabic (706), and Vietnamese (425).

The implied consent law is written in Spanish in the driver's manual published by the Motor Vehicle Commission. The MVC also offers the driver license written exam in English, Arabic, Chinese, French, Spanish, Korean, Polish, Portuguese, Russian, and Japanese, and oral tests are conducted in English and Spanish. If the tests are not offered in your native language, the MVC allows you to use an interpreter.

In Marquez, the Supreme Court encouraged the MVC and the Attorney General to develop methods to translate and communicate the implied consent warning to motorists who do not speak English. As a result, certified translated versions of the standard statement have been prepared in both written and audio form in the nine foreign languages in which the MVC offers the written driver's test, namely, Arabic, Chinese (Mandarin), French, Japanese, Korean, Polish, Portuguese, Russian, and Spanish. The translated written and audio files are posted on the MVC website.

Defendants who claim that they do not speak or understand English have to demonstrate this to the court. Consult with a qualified NJ DWI defense attorney to evaluate all the defenses available to you in a New Jersey DWI / Refusal case.

New Jersey Refusal / DWI law is complex, but it has just been clarified by the New Jersey Supreme Court in a case called State v. Ciancaglini, decided January 19, 2011, favoring individuals who have prior Refusal convictions who then get a subsequent DWI conviction.

The case also illustrates that lower courts can be wrong in their assessment of an issue, and appeals must be taken in order to correct the errors made and reverse the conviction or legal issue.

Ciancaglini had a prior DWI in 1979 and then a conviction for Refusal in 2006. In 2008, she was convicted of DWI, and the Municipal Court sentenced her as a third offender, based on changes in the case law from a few years earlier. She then appealed to the Law Division, which agreed with her that the law precluded the Refusal conviction to be counted against her DWI sentencing, and sentenced her as a first offender, giving her the benefit of the 10 year step down rule between her 1979 conviction and the current 2008 conviction. The State then appealed, and the Appellate Division reversed the Law Division, and held that she should be considered a third offender based on the change of law in a case called State v. Cummings.

Fortunately, the New Jersey Supreme Court reversed the Appellate Division, and held that the legislative intent of the law precludes using the 2006 Refusal conviction to enhance the 2008 DWI conviction. The Court relied on a case called DiSomma from 1993, which determined that the Legislature intended the provisions of the DWI and Refusal statutes to be separate. Since the DiSomma decision, the Legislature has not revised the statutes on this issue, so the same reasoning applies: a prior refusal conviction cannot be used to enhance a subsequent DWI conviction.

The Ciancaglini Court noted that the DWI statute does not contain any reference to the refusal statute, and nothing suggests that the references to prior violations in the penalties listed in the DWI statute are meant to refer to anything other than DWI convictions. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, it would have to directly state that change of law.

Bills are already pending in the New Jersey Legislature to make this change. Therefore, it is important to consult with a qualified DWI Defense Attorney who knows DWI and Refusal law to fully assess your case and circumstances.

When I speak with prospective clients who have been charged with Refusal to Submit to Breath Testing in a New Jersey DWI/DUI, I often hear, "How can I be charged with Refusal? I blew into the machine several times!"

If you have been charged with Refusal, and if you attempted to blow into the Alcotest®, the new breath testing machine in New Jersey DWI matters, you probably have a good defense to that charge. That's important, because, on a first alleged offense, the suspension for Refusal is much greater than the DWI charge. On a first Refusal, the license suspension is 7 - 12 months, and the suspension on the DWI is 3 months.

Getting rid of the Refusal charge makes the DWI/DUI more defensible. Not only is there one less serious charge to defend, there is no longer an inference that you refused because you were drunk. There is actually a case that says that if you are convicted of Refusal, the judge can infer that you refused because you were, in fact, intoxicated. See State v. Tabisz.

So, what are some of the available defenses to Refusal when you did attempt to blow?

Did the officer read you the second set of warnings on the "Implied Consent Warning" that he/she was supposed to read you prior to administering the breath test. When the officer read you the statement, you consented to giving samples of your breath. You said you would take the test. You did take the test, but, for some reason were not able to give an adequate sample. The officer may have verbally told you that he/she would charge you with refusal if you didn't give a complete sample, but, unless he/she read you the final paragraph on the Implied Consent Warning, then you have a defense to the charge. See State v. Schmidt.

You may have a physiological defense to your attempts to blow into the Alcotest. It is not an easy blow -- it takes more effort to blow into this machine than its predecessor, the Breathalyzer®. If you have any pulmonary or lung issues, or if you are sick, or are a smoker, you may be able to demonstrate that you couldn't physically provide the required sample.

There are many more defenses to Refusal to Submit to Breath Testing in a New Jersey DWI/DUI case. You should consult with qualified DWI/DUI counsel who can go through all of the facts of your case and determine your best defenses.

In all states, including New Jersey, after a DWI arrest, a police officer must read a "standard statement" that contains a warning that the motorist must submit to breath testing when probable cause exists to believe the person is under the influence of alcohol.

The implied consent form includes some pretty alarming language that should make anyone hearing it sit up and take notice, even if the person is in a bit of an altered state. So, when I speak to clients who say that they don't recall being read anything prior to being asked to submit to breath testing, I think that is a significant issue to explore.

For example, the most significant part of the statement sets forth the potential penalties for failure to submit to the testing:

"According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle may be revoked by the court for a period of no less than seven months and no more than 20 years. The Court will also fine you a sum of no less than $300.00 and nor more that $2,000.00 for your refusal conviction."

Twenty years? Really? That would only be for a third offense refusal in a school zone, where the two prior convictions for refusal were in a school zone, as well. That would be an extremely rare circumstance.

It's the seven months that is also significant to someone who has never been arrested, and who says that he/she had no alcohol whatsoever to drink. That person has likely watched many television shows and heard the often repeated statement, "You have the right to remain silent" and the right not to give evidence against yourself. But, according to the courts in New Jersey and the United States Supreme Court, that does not apply to breath testing. If you have a driver's license, you have given your consent to submit to breath testing in New Jersey, whether or not you are an NJ licensed driver or a driver licensed in another state.

There is a specific paragraph in the Implied Consent Warning that cautions against relying on the right to remain silent, as well as the right to speak to an attorney before breath testing:

"Any warnings previously given to you concerning your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give or to delay giving samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician or anyone else present, for the purpose of taking the breath samples."

This sets up a confusing situation where someone believes they have a right to speak to an attorney or to decline to give evidence against them self, yet they are being told by a police officer that they don't have those rights.

Just because you have been charged with Refusal in New Jersey doesn't mean that you will automatically be convicted of that charge and the accompanying DWI charge. There are many defenses to Refusal and DWI in NJ that you should explore with a qualfied DWI lawyer that knows how to challenge these cases in all courts in the state of New Jersey.

As a New Jersey DWI Attorney, I acknowledge that "refusal" cases, where a client says he/she will not submit to a breath test, is one of the harder types of cases to deal with in my DWI-only practice.

However, it is not a foregone conclusion that the person who says no will be convicted of refusing to take the test. There are many defenses to refusal charges.

There are very few instances where, in hindsight, refusing to blow would have been a good decision. Refusal is a second charge -- in addition to the DWI charge -- so, now, you have to worry about defending both charges. Even where the person is sure that he/she is over the limit prior to blowing into the breath testing machine, it is almost always better to blow than not, because there are many more defenses to breath testing issues than refusal cases.

So, what are the defenses? Each case, of course, is different, and has to be analyzed on its own, so it is always best to consult with an attorney who is experienced and knows how to defend a DWI and refusal case. One significant defense is that the officer who processed the arrestee did not read the correct "implied consent form". This is especially true now, after a recent case from the Appellate Division called State v. Tirado.

In Tirado, the officers' testimony did not establish that the appropriate statement was read. The Appellate Division stated that because the state did not prove beyond a reasonable doubt that the proper statement was read in an accurate manner, the refusal charge against Mr. Tirado had to be dismissed.

Tirado is a very important case, however it is unpublished, which makes it's impact a little less forceful. However, because it is an Appellate Division case, it has statewide value. This case follows a line of decisions from the New Jersey courts that stress the importance of adherence to protocol: if the state (the police) do not follow their own procedure, the evidence is tainted and is either viewed in a very suspect manner, or, as in this case, it is excluded from evidence.

Many people make the mistake of assuming that DWI and refusal cases are all the same, or that they have little variation. The more experienced DWI attorney will look at every fact and piece of evidence in each case to determine how to best defend the client. Even the worst and most difficult cases have facts that can be favorable to the accused. The question is, what are these facts, and how the facts can be used to help defend the case.