Police Must Ask Twice Before Charging DWI Suspect with Refusal Who Attempts To Blow

The New Jersey Appellate Division recently decided State v Schmidt which addressed a rather prevalent issue pertaining  to the  refusal (DWI) standard rights form or paragraph 36 as it is sometimes referred. In some of my prior articles, I have discussed refusal and what the police are required to do before charging an individual with refusal. As part of this procedure, the police are required to read verbatim from a standard form which contains the suspects rights as they pertain to refusal to submit to the Alcotest/Breathalyzer. The form consists of two sections of text, the first of which informs the individual as to what their rights are as the pertain to refusing the test. The second paragraph provides the defendant with one more chance to submit should he/she give an ambiguous  response to the first paragraph.

However, recent case has relieved law enforcement of the obligation to read the second paragraph if the individual suspected of DWI refused unequivocally after being read the first section of the form. This Appellate Division decision does not deal with unequivocal refusals, but rather circumstances where a defendant who consents to the test, subsequently is charged with a refusal after attempting to blow into the Alcotest. The court ruled that when an individual consents to the test, but does not provide valid breath samples, then the officer administering the Alcotest must read the second paragraph of the standard rights form and give the individual one more chance. This decision is great for those who have attempted to blow into the instrument, but have been charged with refusal for failing to provide adequate samples. This decision is also good for those who have consented, but would not blow into the instrument and who were not read the additional section of paragraph 36. There is typically a learning curve for law enforcement, which means there will be plenty of circumstances in the coming months to challenge refusal charges on these grounds.

If you have been charged with refusal, I can be reached 24/7 for a free consultation.


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