New Jersey prosecutors can use evidence of a defendant’s blood alcohol content (BAC) to establish guilt in a case of alleged driving while intoxicated (DWI). A BAC of 0.08 percent or higher creates a presumption of impairment. New Jersey law effectively requires drivers, when a police officer suspects DWI, to submit a breath sample for BAC analysis, on penalty of a fine or license suspension. State law also requires officers to read a “Standard Statement” to a driver prior to administering a breath test. A defendant recently appealed her conviction for a refusal to submit to breath testing by challenging the legal sufficiency of the Standard Statement. While the Appellate Division ruled against her, its opinion in State v. Quintero offers a useful overview of New Jersey refusal law.
Simply by operating a vehicle on public roads within this state, drivers in New Jersey are considered to have given “implied consent” to breath testing. A refusal to submit to breath testing after an arrest on suspicion of DWI is considered a traffic offense, separate from the offense of DWI. A first-time refusal offender could face a license suspension of seven months to one year, and a fine of $300 to $500. This increases to a two-year suspension and a $500-$1,000 fine for a second offense, and a 10-year suspension and a $1,000 fine for a third.
The “implied consent” law requires people to provide evidence that could be used against them by prosecutors in municipal court. Despite this, courts have generally held that it does not violate the Fifth Amendment’s privilege against self-incrimination. The self-incrimination privilege protects a person from being compelled to testify against themselves, and courts have held that submitting a sample of breath is not “testimony.”
In order to make drivers aware of their rights, and of the potential consequences of refusing breath testing, the New Jersey Motor Vehicle Commission has created a Standard Statement, available in English and nine other languages. The statement explains that state law requires the submission of a breath sample, that a refusal to do so carries penalties, and that the driver has the right to a copy of the record of the breath sample.
A police officer pulled over the defendant in Quintero, according to the court’s opinion, when she continued driving on the wheel rim after her tire blew out. The officer placed her under arrest, transported her to the police station, and read the Standard Statement. She refused to provide a breath sample, so the officer charged her with DWI and refusal. The defendant pleaded guilty to DWI, but she entered a conditional plea of guilty on the refusal charge. This allowed her to appeal on the question of whether the Standard Statement was legally sufficient to meet the statute’s requirements.
The Appellate Division noted that the New Jersey Supreme Court considered a challenge to the Standard Statement in 2013 in State v. O’Driscoll, which alleged that it was insufficient because it did not identify the mandatory minimum penalty for refusal. That court ruled that the Standard Statement, by identifying the maximum penalty, met the requirements set by statute. The Appellate Division followed this ruling and affirmed the conviction.
A knowledgeable and skilled New Jersey DWI attorney can advise you of your rights and provide a strong defense for you against a DWI charge. Contact Levow DWI Law online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
Federal Agency Calls for Further Lowering of the Legal BAC Limit in DWI Cases, New Jersey DWI Attorney Blog, December 29, 2015
Judge Dismisses DWI Charge Because of Driver’s Rare Medical Condition, New Jersey DWI Attorney Blog, December 22, 2015
Crime Lab Employees Allege Problems with Breath-Testing Machines Used in DWI Cases, New Jersey DWI Attorney Blog, October 16, 2015