Defending a New Jersey DWI Refusal Charge after Schmidt: What’s Left?

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.

If you can demonstrate facts and circumstances to the prosecutor, the police officer, and judge that show that you were not being obstinate, obstructionist, or generally difficult, you may be able to convince the justice system that the refusal charge should not stand against you. These facts or circumstances are specific to each situation, but might include physiological reasons why you could not submit an adequate sample of breath into the machine.

Perhaps you suffer from asthma, or you are a heavy smoker. Did you have a cold or upper respiratory issue? Your family doctor can test you for lung capacity, and the results of that testing can be used to demonstrate that you had an objective issue that prevented you from properly blowing into the machine.

You may have been so upset at the time that your anxiety kept you from breathing properly. While no one is comfortable in these situations, if you suffer from a pre-existing anxiety condition, you may be able to use that information to your advantage in a case like this.

All of this requires forensic activity by your New Jersey DWI lawyer to determine what defenses are available to you under the circumstances presented. You want to make sure that you are represented by someone who is appropriately aggressive in seeking to protect your rights and your future.

Success can be obtained in New Jersey DWI Refusal cases, under the right circumstances.

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