Breath Testing in New Jersey DWI Cases and the Right Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution protects the right against self-incrimination. The extent of this protection is not always clear, however, and the right to refuse to provide information to police has limits. In driving while intoxicated (DWI) investigations, suspects are often asked to provide breath samples for chemical testing. The evidence obtained from breath testing can provide the state with nearly all of the information it needs to bring a DWI charge. In New Jersey DWI cases, providing a breath sample is actually mandatory under the law. Is this the sort of self-incrimination covered by the Fifth Amendment? A long line of court decisions says that no, it is not, but understanding why may be helpful in understanding the rights a DWI defendant does have.

Under New Jersey law, a refusal to submit a breath sample for chemical testing, upon a request by police, is a motor vehicle offense punishable by a fine and a driver’s license suspension. New Jersey courts have imposed strict requirements for submitting to breath testing. Anything other than unambiguous agreement could constitute refusal. A 2007 decision from the New Jersey Appellate Division, State v. Spell, held that a DWI suspect has no right to request testing after they have already refused. In that case, the defendant claimed he was having chest pains and could not provide a breath sample, but he told an officer he was feeling better after a hour. He offered to submit a sample at that time, but the officer “declined because defendant had already refused.”

The Fifth Amendment states that “no person…shall be compelled in any criminal case to be a witness against himself.” This applies to sworn testimony in a court of law, which is where we get the term “pleading the Fifth.” It also protects the “right to remain silent” during custodial police interrogations, which generally means after a person has been placed under arrest and advised of their rights. In most situations, a person must affirmatively state that they are invoking their right against self-incrimination, or else police may continue questioning them.

The key issue for DWI cases and breath testing is the kind of information protected by the Fifth Amendment. Courts have held that it only covers testimonial evidence, rather than physical evidence. A 2014 decision from an appellate court in Virginia, while not binding on New Jersey courts, offers a useful illustration of the difference between testimonial and physical evidence. Police in that case obtained a warrant to search a cell phone but were unable to unlock the device. They asked a court to issue an order compelling production of the passcode or ordering the phone’s owner to provide fingerprint access.

The appellate court ruled in Virginia v. Baust that the passcode was protected by the Fifth Amendment because it drew upon a person’s knowledge. A fingerprint, on the other hand, was physical evidence that was not protected. The U.S. Supreme Court made a similar ruling with regard to providing fingerprints to police in United States v. Wade in 1967. A breath sample is physical evidence, like a fingerprint, rather than testimonial evidence.

With more than 20 years of experience in New Jersey courts, DWI attorney Evan Levow can help you prepare a strong defense for your case. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense, New Jersey DWI Attorney Blog, August 16, 2016

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

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