New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense

question markNew Jersey’s implied consent law states that a person who operates a motor vehicle on the public streets and highways of this state is deemed to have consented to providing breath samples during investigations of suspected driving while intoxicated (DWI). Prior to collecting a breath sample in this situation, a police officer must read a “Standard Statement” explaining the law and the consequences of refusing to submit a sample. Penalties for refusal can include license suspension, monetary fines, and the use of an ignition interlock device. A defendant appealed his refusal conviction under the “confusion doctrine,” which the New Jersey Supreme Court described in a 1987 decision, State v. Leavitt. The Appellate Division rejected this argument in June 2016 in State v. Byrne, holding that the “confusion doctrine” only applies to refusal cases in very limited circumstances.

Law enforcement officers throughout the country are required to read a list of rights to a person during or shortly after their arrest. The U.S. Supreme Court established this obligation in its 1966 decision in Miranda v. Arizona. This list of rights, which begins with the familiar phrase “You have the right to remain silent,” is commonly known as “Miranda rights.” The process of reading those rights to someone is sometimes called “Mirandizing” them.

The Standard Statement used in DWI arrests in New Jersey is significantly different from the Miranda statement. While the Miranda statement discusses an individual’s Fifth Amendment right against self-incrimination—i.e., the “right to remain silent”—and the right to representation by an attorney, the Standard Statement says that these rights do not apply with regard to the taking of a breath sample.

The confusion doctrine arose from the New Jersey Supreme Court’s recognition in Leavitt that having both statements read to someone in quick succession could be confusing and could therefore result in someone refusing to submit a breath sample without fully understanding the consequences. It is important to note that the court ultimately held that the defendant in Leavitt had not established that he was confused. It further held that a defendant “bear[s] the burden of persuasion” in a confusion defense. The Appellate Division noted in its decision in Byrne that no court has ever accepted a confusion defense in New Jersey since Leavitt was decided almost 30 years ago.

The defendant in Byrne was arrested for suspected DWI. At the police station, an officer read the Standard Statement to him. When he asked the defendant to provide a breath sample, however, the defendant reportedly said “Lawyer says to say no.” At trial, the defendant proffered that a friend who was an attorney licensed by the state of New York would testify that he had told the defendant not to agree to perform any field sobriety tests, but the defendant might have been confused and thought he meant breath tests.

The municipal court rejected the defendant’s confusion defense, finding that he had properly received the Standard Statement at the time of his arrest. The Appellate Division affirmed this ruling, noting that “his attorney-friend’s faulty legal advice” is not a sufficient basis for the confusion defense and holding that the defense requires proof of confusion that specifically involves Miranda.

If you are facing a charge of alleged DWI in New Jersey, you need a knowledgeable and experienced DWI attorney to help you understand your rights and defend you against the state’s charges. Evan Levow has practiced law in New Jersey for more than two decades and has dedicated 100% of his practice to DWI defense. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation.

More Blog Posts:

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes, New Jersey DWI Attorney Blog, May 25, 2016

New Jersey Courts Hold that Chun’s Twenty-Minute Waiting Period in DWI Cases May Not Be Used for Delay, New Jersey DWI Attorney Blog, July 28, 2015

Court Decision Changes Warning Requirements for New Jersey Police Administering Breath Tests to DWI Suspects, New Jersey DWI Attorney Blog, November 30, 2014

Photo credit: SueJunky [Public domain], via Pixabay.