New Jersey Appellate Court Rules on Refusal Charges that Cite the Wrong Code Section

Prosecutors in New Jersey DWI cases have the burden of proving every element of driving while intoxicated (DWI) beyond a reasonable doubt. They must also ensure that the proceedings accord with a defendant’s due process rights. This includes a defendant’s right to understand the charges brought against them and the likely penalties that could result from a guilty verdict. New Jersey, along with many other states, has an implied consent statute that effectively requires drivers to submit to breath testing when ordered to do so by a police officer. A separate code section makes it a motor vehicle offense, punishable by a fine and driver’s license suspension, to refuse to submit to breath testing. The New Jersey Appellate Division recently ruled in two cases that alleged due process violations because of summonses that cited the wrong code section. In both cases, State v. Dito and State v. Horton, the summonses cited the implied consent statute, rather than the section making refusal an offense.The Fourteenth Amendment to the U.S. Constitution prohibits states from depriving persons of “life, liberty, or property, without due process of law.” One aspect of this requirement involves “fair notice” of potential criminal penalties for specific conduct. The U.S. Supreme Court has found statutes to be unconstitutional for failing to provide fair notice. In a 1964 decision, Bouie v. City of Columbia, the court held that a trespass statute did not clearly define the offense, such that the defendants knew that their conduct was illegal.

The defendants in Dito and Horton argued that New Jersey’s implied consent and refusal statutes present a similar question. The implied consent law, found in § 39:4-50.2 of the New Jersey Revised Statutes, states that anyone operating a vehicle on a public roadway in New Jersey “shall be deemed to have given his consent to the taking of samples of his breath” in DWI investigations. It does not, however, prescribe any penalty for refusing to provide a breath sample. The provisions for penalties are found in § 39:4-50.4a, which mandates driver’s license revocation and a fine.

The question presented in Dito and Horton was whether a summons for refusal that cites § 39:4-50.2 instead of § 39:4-50.4a constitutes “fair notice.” The defendant in Dito moved to dismiss the refusal charge in municipal court on this ground. The Law Division granted the motion, holding that “that the error was fatal because it failed to inform defendant of the nature of the charge against him.”

In unpublished decisions, the Appellate Division reversed the Law Division’s ruling. It cited a 2010 New Jersey Supreme Court decision, State v. Marquez, which held that, while the elements of the refusal offense “appear in different sections, they are plainly interrelated.” The appellate court also cited a 2004 New Jersey Supreme Court decision, State v. Fisher, that rejected a due process argument based on an arresting officer’s failure to get the defendant to sign a traffic ticket. The Supreme Court held that affirming that argument would “amount[] to…[an] exaltation of form over substance that our courts have properly rejected.”

Because these decisions are unpublished, they are not considered precedent. Two other similar cases are pending, one in the Appellate Division, and another in the New Jersey Supreme Court. These cases, filed by Levow DWI Law, P.C., argue that Dito and Horton are wrongly decided. Look for the decisions in those cases in this blog in the upcoming months.

DWI lawyer Evan Levow advocates for the rights of people charged with DWI or DWI refusal in New Jersey municipal courts. He can help you understand your rights, prepare a strong defense for your case, and guide you through the court process. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our knowledgeable and experienced team.

More Blog Posts:

Does the Legal Presumption of Intoxication in Some DWI Cases Violate Due Process? New Jersey DWI Attorney Blog, October 24, 2017

Lawsuits Challenge the Constitutionality of Ignition Interlock Devices in DWI Cases, New Jersey DWI Attorney Blog, October 13, 2017

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence, New Jersey DWI Attorney Blog, August 22, 2016


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