Articles Posted in Refusal

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.

Continue reading

Supreme CourtThe Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures” by police, requiring them first to obtain a warrant from a judge. The U.S. Supreme Court is currently considering a Fourth Amendment challenge to state laws regarding “implied consent,” by which anyone operating a motor vehicle on that state’s public roads is considered to have consented to breath testing in investigations of suspected driving while intoxicated (DWI). Unlike New Jersey’s implied consent statute, the statutes at issue, from Minnesota and North Dakota, impose criminal penalties, including jail time, for refusing to submit to breath testing. The court’s eventual decision in Birchfield v. North Dakota is still likely to have an impact on New Jersey DWI law.

Evan Levow, President of the DUI Defense Lawyers Association (DUIDLA), was part of the amicus team from DUIDLA that submitted a brief to the U.S. Supreme Court in this case.

New Jersey law defines refusal as a traffic offense, which is generally not subject to as great a penalty as a criminal offense. A New Jersey refusal conviction results in a license suspension and a fine, but no jail time. For a first conviction, the period of license suspension is seven months to one year, and the fine is $300 to $500. This increases to two years’ suspension and a $500 to $1,000 fine for a second offense, and 10 years and $1,000 for a third or subsequent conviction. Penalties are further increased if an offense occurred in the vicinity of a school.

The North Dakota statute being challenged in Birchfield includes refusal in its definition of DWI, making it a misdemeanor or felony offense to refuse “a chemical test, or tests, of the individual’s blood, breath, or urine.” New Jersey’s law, it is worth noting, only requires breath testing. The penalty for a first offense does not appear to include jail time, but a second offense carries a mandatory minimum of 10 days in jail. A felony offense includes “at least one year and one day’s imprisonment.”

Continue reading

Rob Pongsajapan [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via FlickrA Texas city is facing a major backlog of blood samples collected in driving while intoxicated (DWI) cases. San Antonio subjects DWI suspects to mandatory blood draws if they refuse to submit a breath sample. Police use breath or blood samples to determine blood alcohol content (BAC). A BAC level of 0.08 percent or higher is legally presumed to be evidence of intoxication, although BAC evidence is not always essential to a prosecutor’s case. The backlog does not appear to be causing a delay in pending DWI cases, at least according to local prosecutors. The U.S. Constitution, however, guarantees defendants a right to a speedy trial, so backlogs in the processing of evidence are always cause for concern.

Bexar County, Texas, whose jurisdiction includes San Antonio, had a contract with a private laboratory to test blood samples in DWI cases. The District Attorney (DA) canceled the contract shortly after taking office in early 2015. A series of documentation errors by the laboratory called hundreds of DWI cases into question. This included the alleged mislabeling of up to 350 blood samples, first discovered in 2014. The county now faces a backlog of over 1,000 samples, with no efficient means of testing them.

New Jersey DWI law, we should note, differs from Texas law with regard to blood draws. Multiple Texas cities have enacted “no refusal” policies that mandate blood draws from all DWI suspects who refuse a breath test. San Antonio expanded this policy from weekend traffic stops to all traffic stops in 2011. New Jersey drivers are subject to the implied consent statute for breath testing, meaning that anyone driving on New Jersey roads has, solely by virtue of driving, consented to providing a breath sample to a police officer who suspects DWI. This statute does not apply to blood samples. Police may still compel a person in New Jersey to submit a blood sample without a warrant, however, in certain circumstances.

Continue reading

By Eric Kilby from USA (YAWN  Uploaded by Snowmanradio) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe New Jersey Supreme Court’s 2008 ruling in State v. Chun is one of the most important decisions affecting the rights of DWI defendants in this state. It caused major changes in how the state uses Alcotest machines to collect breath samples from DWI suspects. Chun also established mandatory procedures that safeguard DWI suspects against inaccurate test results, including a 20-minute waiting period prior to a breath test. In some situations, however, an individual could open themselves up to a charge of refusal to submit to a breath test, if an officer concludes that they are intentionally stalling.

Chun established that an officer must wait 20 minutes before collecting breath samples from a suspect, in order to ensure that no foreign substances are present in or around the suspect’s mouth that could affect the test results. During this time, the officer who will administer the test must observe the suspect to see if they place anything in their mouth, or if they swallow or regurgitate anything. If the officer notices anything entering or exiting the person’s mouth, notices that the person has gum or chewing tobacco in their mouth, or sees the person touch their mouth with their hand or any other object, the 20-minute observation period must start over.

This waiting period could come into conflict with New Jersey laws regarding implied consent to breath or blood testing. An individual who is instructed to provide a breath sample based on probable cause to suspect DWI may face a separate charge for refusal if they give anything short of total cooperation to the officer. Courts have sustained refusal convictions in cases where individuals failed to submit enough of a sample for the device to conduct an accurate test, and even cases in which a defendant agreed to submit a breath sample but tried to add a condition for doing so. This raises the question of whether a New Jersey DWI defendant could face a refusal charge for requiring multiple re-starts of the 20-minute Chun observation period.

Continue reading

By Reid, Jim P, U.S. Fish and Wildlife Service [Public domain], via Wikimedia CommonsNew Jersey law contains two different, but related, provisions related to driving while intoxicated (DWI). The DWI statute addresses the actual alleged act of driving while under the influence of alcohol or another intoxicating substance. The refusal statute deals with drivers who refuse to submit to breath or blood testing to determine the amount of alcohol in their bloodstreams. State law requires police to read a statement to a suspect regarding the consequences of refusing to submit to chemical testing. A recent court decision, State v. Peralta, clarifies whether a failure to read that statement requires a court to dismiss any resulting charges. An unpublished court decision from about four years ago, State v. Tirado, suggested that such failure requires dismissal of all charges, even DWI, but Peralta holds that it only affects the outcome of a refusal charge. Peralta effectively overrules Tirado, which offered a loophole as a sort of defense in DWI cases.

The New Jersey Motor Vehicle Commission has issued a “Standard Statement for Operators of a Motor Vehicle” (“Standard Statement”), which police must recite to a suspect before administering a blood or breath test. Refusal to submit to testing may result in license suspension, a fine, and other penalties. Courts have generally held that reading the Standard Statement is required to obtain a conviction for refusal, but Tirado, a 2010 decision by the Superior Court, Appellate Division, expanded this to a DWI case. The court found that the state had not proven that an officer read the Standard Statement to the defendant before administering a breathalyzer test and partly reversed the defendant’s DWI conviction as a result. Since the decision is unpublished, it is not binding authority in other DWI cases, but it has come up in cases where police made similar omissions.

In Peralta, a municipal judge convicted the defendant of DWI based on evidence from a breathalyzer test that showed 0.19 percent blood alcohol content (BAC), more than twice the legal limit. The defendant, who was not charged with refusal, appealed the DWI conviction in part based on the failure by police to read the Standard Statement before administering the breath test. The court noted that the defendant relied on an unpublished case in making his argument but does not identify the case. It held that the failure to read the Standard Statement was not relevant to the DWI case. Continue reading

geralt [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA recent decision by the Superior Court of New Jersey, State v. O’Neill, highlights two important features of New Jersey driving while intoxicated (DWI) laws. First, the court held that, under New Jersey’s implied consent law, any response other than an unambiguous “yes” to an officer’s request to submit to breath testing may be deemed a refusal. Even verbal consent by a person to breath testing, as long as her mother remained with her, could be considered “refusal” under this interpretation of the law. Second, state law requires officers to read a statement regarding implied consent and refusal, and as long as an officer reads the statement prior to taking a breath sample, the state has fulfilled its duty under the law. This applies even if the statement omits information any defendant might reasonably find useful.

The defendant was stopped by a police officer in Bernard Township, New Jersey on January 19, 2013, allegedly for speeding. The officer determined that she had consumed alcohol before driving, although the court does not say how. After placing her under arrest and transporting her to police headquarters, the officer read the New Jersey Attorney General’s Standard Statement for Motor Vehicle Operators (the “Standard Statement”) aloud to her. The defendant responded that she would agree to testing if her mother could be with her. Because this response was “conditional,” rather than “yes,” the officer read the final section of the Standard Statement, which states that she could be charged with refusal for any answer “other than ‘yes.’” The defendant replied “no.”

The officer charged the defendant with DWI, refusal to submit to breath testing, speeding, and failing to produce documentation. The defendant filed a motion to dismiss the refusal charge in the municipal court, arguing that the state did not fulfill its statutory duties because it failed to advise her of the minimum penalties if she were to be convicted of refusal. The municipal court denied her motion. The defendant pleaded guilty to DWI, and entered a conditional plea of guilty to refusal, reserving her right to appeal the dismissal motion. The Law Division denied her appeal, and the case went before the Superior Court. Continue reading

By GrahamColm (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsA decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading

kropekk_pl [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA series of errors by a private laboratory testing company has called hundreds of pending DWI cases into question. Blood samples sent to the lab were reportedly mislabeled, or were subject to other paperwork errors, resulting in uncertain test results. Prosecutors are trying to determine whether retesting is possible, while DWI defendants and their advocates remain skeptical that the state has revealed all of the damage done by the lab’s errors. Laws defining the offense of DWI generally do not require evidence of blood alcohol content (BAC) obtained through blood or breath testing, but chemical evidence is generally considered the simplest way for prosecutors to prove intoxication.

The district attorney’s office in San Antonio, Texas contracted with the laboratory, which is located in the Dallas/Fort Worth area, to test samples taken by police in DWI cases. The lab reportedly sent a letter to the DA’s office in May 2014 informing it that an analyst had made multiple errors in paperwork affecting hundreds of samples. The DA’s office has reportedly not made the full extent of the errors public, but one error by the analyst, who has been terminated by the lab, involved incorrect labeling of 350 samples.

The lab has reportedly sent test results to the DA’s office with notices that they cannot definitively link the results to a specific sample, although the DA’s office has denied that results have actually been mixed up between cases. The office has also denied that any samples were contaminated by the lab, although news media have reported that some documents make reference to contaminated equipment. The situation has left both prosecutors and criminal defense attorneys uncertain how to proceed with pending DWI cases. Continue reading

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.

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.