I’ve represented many clients charged with Refusal to Submit to a Chemical Breath Test. This ticket is usually accompanied by a DWI charge as well. Refusal charges are typically difficult to beat. I feel that I have better success than most overcoming a refusal charge. In most cases, the penalty one faces for refusal can far exceed the penalty for a DWI charge when it come to loss of license.
Over recent years there have been several appellate division cases regarding the procedural aspects of refusal. Most of those have not gone well for the defendants involved or the lawyer who filed it.
However, I have had recent success arguing a new procedural issue that has got some traction and has even resulted in some police departments changing the way they issue refusal violations.
I don’t want to necessarily go to much into the defense, but it is a simple and easy to understand concept which is great for the Municipal Court System. The argument can be summed up in a two or three page brief. The timing of the argument is the most important in my opinion.
If you or anyone you know is facing a refusal charge, it makes sense to see if there is standing to make this argument. I’ll know within 30 second of a consultation whether is can be done.
First, the machine used in New Jersey for breath tests is the Alcotest. The breathalyzer was the former device that is no longer in service. However, one could make the argument that the Alcotest is no more reliable.
Regardless, refusal has nothing really to do with the machine. A refusal is charged when a suspect under arrest for suspected DWI refuses to blow into the tube. But the inquiry doesn’t end there. In order for the state to prove a refusal, it must show that there was probable cause for the arrest, that the police complied procedurally by advising the suspect of the penalties for refusal and that the defendant knowingly refused.
This becomes more complicated than one would imagine. Rules are hard for people to follow. Police aren’t immune to this. In fact, police frequently have a hard time following the rules. Whether or not they tell the truth about that on the stand is another story. But I digress.
When someone blows into the machine and is still charged with refusal…well now we have something. We get to that gray area of police officer judgement call. If you blow into the machine, it certainly cannot be considered an unequivocal refusal. That triggers another set of rules for police to follow. Secondly, if you are charged with refusal after you attempted to blow, then the state is going to have a hard time proving that you knowingly refused. All the elements of the state’s case must be proved beyond a reasonable doubt and this sort of situation makes it a lot more difficult.
Maybe we beat the refusal. Now comes the DWI. But after we beat the refusal there is no downside to going to trial on the DWI. That, of course, is assuming the refusal is not dismissed as part of a “resolution”. But in most cases, the state is unwilling to do so. Running the suspensions concurrent is usually the best pretrial offer, which is OK, but I’d prefer a trial and take our chances.
Refusal offenses are tough to beat, but under certain circumstances, a refusal charge can be overcome. Additionally, there is current issues before the NJ Superior Court that are affecting just about all pending refusal cases, but the window may close soon. Regardless, no one should take a seven month loss of license lying down.
In a remarkable decision, the New Jersey Supreme Court held in State v Marquez, that a person arrested for suspected DWI/DUI in NJ must be read the standard statement (the eleven paragraph form which advises the DWI suspect of the penalties for failing to submit to a chemical breath test, Alcotest, Breathalyzer) in the language which the individual speaks before being charged with refusal.
This is a complete departure from lower court’s interpretation of the implied consent laws under NJSA 39:4-50.2. Prior to this decision, under the theory of implied consent, whether a DWI suspect understood English was not a consideration. Applying for and receiving a driver’s license was like signing a contract with the state, one of the terms being that you have already given you consent to chemical breath test. Failure to do so at the time of reckoning was a fatal mistake leading to a seven month loss of license (for a first offense).
Now, the duty is on the State to provide a translation of the standard statement in 9 different languages, and make arrangements to provide translations for those languages that are not covered by the nine.
For the full text of the case please see State v Marquez. Additionally, this is the second case-law decision in as many months that has come down on the side of DWI defendants and DWI defense attorneys. If you have been arrested for DWI and charged with refusal, please call for a free consultation. I can tell you if your case falls within the facts of this recent DWI case-law.
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.