Court Can Require Ignition Interlock after Refusal to Submit to Chemical Testing, Even if Police Did Not Include It in Warning

By vishwin60 (Own work) [Public domain, GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/) or FAL], via Wikimedia CommonsThe New Jersey Superior Court ruled that a defendant can be required to use an ignition interlock device as a penalty for refusal to submit to a breath test, even though the officer who read the required warning about refusal did not mention any penalties. The defendant in State v. McGrath argued that the officer violated his rights by failing to include the possible requirement of an ignition interlock device if he refused a breath test, and that the court should therefore dismiss the charge. He was acquitted of DWI, but convicted of refusal. On appeal, the Superior Court ruled that the lack of specific warning about an ignition interlock device did not preclude it as a penalty.

A police patrolman issued tickets to the defendant on August 20, 2011 for DWI and refusal to submit to a chemical breath test. He testified in municipal court that he arrested the defendant and took him to the police station, where he read the “New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle” aloud to the defendant. State law requires that an officer read this notice (PDF file) before asking a DWI suspect to submit to chemical testing. The most recent version of the notice at the time was finalized on April 26, 2004. It did not mention ignition interlock as a mandatory penalty for refusal, which the state enacted in 2010. The defendant refused to submit to testing.

The defendant moved to dismiss the refusal charge because of the incomplete notice. The municipal court denied the motion. It found him guilty of refusal, but acquitted him on the DWI charge. Because he had three prior DWI convictions, the court deemed the defendant a third-or-subsequent offender. His sentence included a ten-year license suspension and installation of an ignition interlock for a period lasting one year after restoration of his driving privileges. The defendant raised the same argument about the incomplete warning to the Law Division, which affirmed the refusal conviction but reversed the ignition interlock requirement.

The Superior Court heard the defendant’s appeal on the question of whether the municipal court should have dismissed the refusal charge as a matter of law. A refusal charge requires proof of four elements: (1) probable cause to believe the defendant committed DWI, (2) arrest for DWI, (3) a request to submit to chemical testing after providing information about the consequences of refusing, and (4) refusal by the defendant. The defendant argued that the state failed to prove the third element.

The court considered a 2013 New Jersey Supreme Court ruling, State v. O’Driscoll, which involved warnings read from a different outdated form. That case established a “materiality test,” which examines whether a defendant would have made a different choice had the missing information been available. The court in the present case held that it was not convinced that the defendant would have submitted to chemical testing had the patrolman included an ignition interlock warning. It affirmed the conviction and reinstated the ignition interlock requirement.

If you have been arrested or charged with DWI, you should consult with a knowledgeable and skilled DWI attorney. At Levow & Associates, we have dedicated our law practice exclusively to New Jersey DWI defense. We can help you understand your rights, prepare the best possible defense for you, and minimize the impact of the case on your life and your future. To schedule a free and confidential consultation to discuss your case, please contact us online or at (877) 593-1717. We are available to help you 24/7.

More Blog Posts:

Defending a New Jersey DWI Refusal Charge after Schmidt: What’s Left? New Jersey DWI Attorney Blog, June 8, 2011

Insufficient New Jersey DWI Breath Samples: “I blew into the machine, but I was charged with Refusal”, New Jersey DWI Attorney Blog, June 1, 2011

Ignition Interlocks are Now Required in Most New Jersey DWI Convictions, New Jersey DWI Attorney Blog, October 8, 2010

Photo credit: By vishwin60 (Own work) [Public domain, GFDL, CC-BY-SA-3.0 or FAL], via Wikimedia Commons.