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.