The 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.”
The Supreme Court has held that warrantless searches violate the Fourth Amendment unless the state can establish that an exception should apply. One possible exception is that the subject of the search consented, and the courts have spent years on the question of who may give consent to what sort of search. Refusal statutes are called “implied consent” statutes for this reason, giving police the right to demand breath samples.
In 2013, the Supreme Court’s decision in Missouri v. McNeely established that warrantless blood draws in DWI cases are unconstitutional, although it allowed for the possibility that “exigent circumstances” might justify them in individual cases. That case involved a challenge to a police practice, while Birchfield challenges an entire statute. The North Dakota Supreme Court reached an interesting conclusion in its 2015 Birchfield ruling, holding that driving is not a “constitutional right” but instead a “privilege” granted by the state, and it is therefore not subject to the same Fourth Amendment protection. The question before the U.S. Supreme Court is whether the Fourth Amendment allows a state to impose criminal penalties for refusing to submit to a warrantless breath, blood, or urine test. The court heard oral arguments on April 20, 2016, and it should issue a ruling some time in June.
An experienced and knowledgeable DWI attorney can help you understand your rights if you are facing an alleged DWI charge in New Jersey. We have dedicated 100% of our law practice at Levow DWI Law, P.C. to representing New Jersey DWI defendants. We can guide you through the court system and defend you against the state’s charges. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
Court Decision Changes Warning Requirements for New Jersey Police Administering Breath Tests to DWI Suspects, New Jersey DWI Attorney Blog, November 30, 2014
New Jersey Statute on Breath Testing for DWI Requires Unconditional “Yes” to Avoid Refusal Charge, Court Holds, New Jersey DWI Attorney Blog, July 7, 2014
Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects, New Jersey DWI Attorney Blog, July 2, 2014