New Jersey DWI Attorney Blog

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.

New Jersey Refusal / DWI law is complex, but it has just been clarified by the New Jersey Supreme Court in a case called State v. Ciancaglini, decided January 19, 2011, favoring individuals who have prior Refusal convictions who then get a subsequent DWI conviction.

The case also illustrates that lower courts can be wrong in their assessment of an issue, and appeals must be taken in order to correct the errors made and reverse the conviction or legal issue.

Ciancaglini had a prior DWI in 1979 and then a conviction for Refusal in 2006. In 2008, she was convicted of DWI, and the Municipal Court sentenced her as a third offender, based on changes in the case law from a few years earlier. She then appealed to the Law Division, which agreed with her that the law precluded the Refusal conviction to be counted against her DWI sentencing, and sentenced her as a first offender, giving her the benefit of the 10 year step down rule between her 1979 conviction and the current 2008 conviction. The State then appealed, and the Appellate Division reversed the Law Division, and held that she should be considered a third offender based on the change of law in a case called State v. Cummings.