Written by attorney Kenneth Albert Vercammen

Refusal Penalty not Taking Breath Test

The State must prove all elements of a refusal beyond a reasonable doubt. State v. Cummings 184 N.J. 84 (2005). [Not preponderance] The elements the state must prove are whether a driver refused to submit to the test upon request of the officer..., N.J.S. 39:4-50.4a(a), and whether the taking of samples were made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a). There are sometimes defenses based on errors by the testing officer in the attempt to obtain a sample. The Refusal Act requires, “A standard statement, prepared by the director, shall be read by the police officer to the person under arrest. N.J.S. 39:4-50.2(e). This statement, by statute, mandates that the police officer shall inform the person tested of his rights N.J.S. 39:4-50.2(d). There must be testimony that all the warnings were supplied to the drivers. That is the state’s job. Failure to read the correct standard statement completely is a defense to refusal. Pursuant to the implied consent law, N.J.S.A. 39:4-50.2(e), the Attorney General's current standard statement (revised and effective July 1, 2012), to be read to motor vehicle operators to inform them of the consequences of refusing to submit to a breath test, provides, in pertinent part 5. If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated. 6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty. The court in State v Quintero 443 NJ Super. 620 (App. Div. 2016) held that the current standard statement, [if read correctly] satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal.

However, There was no testimony this correct statement was actually read to the person sitting in the car, not driving. The Alcotest operator must follow specific machine instructions. The NJ Supreme Court in State v. Chun 194 N.J. 118 (2008) wrote: The operator then attaches a new, disposable mouthpiece and removes cell phones and portable electronic devices from the testing area. The operator is required to read the following instruction to the test subject: “I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?” Chun at 80-81. If the operator fails to follow these instructions, the defendant is not guilty of refusal. There was no testimony this was said to the defendant.

"Zealousness in ridding our roads of drunk drivers cannot overcome our ordinary notions of fairness to those accused of these offenses. State v. Chun 194 N.J. 118 (2008) And from time to time, courts must re-examine much of our earlier jurisprudence as part of our consideration of the issues raised in this appeal. Id. at Based on the seriousness of the consequences of a refusal conviction, our Supreme Court in recent years has redefined the offense from civil to quasi-criminal in character. For example, the Supreme Court held that double jeopardy principles barred retrial of a refusal acquittal even though the facts would otherwise support conviction. State v. Cummings supra at 92-93 (internal citations omitted). Also, the Court elevated the burden of proof required for conviction from preponderance of the evidence to proof beyond a reasonable doubt, State v. Widmaier 157 N.J. 475 (1999) despite the plain language of the statute. Ordinary notions of due process and fair play, especially within a statutory scheme that contemplates reading a standard statement to convey information to an arrestee, militates against the creation of a conclusive presumption that a mere reading of a standard statement in a way that is unintelligible to particular defendant constitutes proof of an element of the offense beyond a reasonable doubt.

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