If you are arrested for a DWI the punishment is not always easy to get around. The punishments inherent to the charge of Refusal to Submit to Breath test presume that the defendant is on notice of the penalties of violating the statute, N.J.S.A. 39:4-50.2. This is why the implied consent warning that was read to defendant, also known as “paragraph 36”, details the penalties for refusing to comply with New Jersey’s implied consent law. The ignition interlock requirement also known to some as a car breathalyzer is not detailed as one of these punishments on that version of paragraph 36.
Without any notice of the ignition interlock requirement for a refusal conviction, a defendant is not put on notice of the complete statutory penalties for refusal. Where the defendant is deprived of the knowledge necessary to warrant installation of the interlock device on his vehicle, it is unfair for the defendant to be exposed to the severe consequences of a Refusal conviction.
In a recent unpublished decision, State v. O’Driscoll, A-4341-10T2, the Appellate Division held that the State failed to inform the defendant of the consequences of refusing to submit to the chemical breath test because the arresting officer read the January 2004 Standard Statement as opposed to the version of that Statement revised as of April 26, 2004 (the April 2004 Standard Statement).
The Appellate Division in O’Driscoll went on to state “the fatal flaw in the Standard Statement read to defendant was that it provided inaccurate information about the penalties he faced and therefore, did not clearly delineate the penalties for a refusal. Pursuant to [State v. Schmidt, 19 A.3d 457 (2011), 206 N.J. 71] the Standard Statement did not satisfy the statutory mandate and, consequently, this essential element of a refusal conviction was not proven”.
The standard is not whether the defendant would have likely consented if put on notice of the ignition interlock requirement. Rather, the standard is whether the warning read to the defendant satisfied the legislative mandate to “clearly delineate the penalties for a refusal.” State v. Schmidt, 206 N.J. 82-83 (2011).
At the Law Offices of Anthony J. Vecchio LLC, we work hard to ensure that all DWI interlock device cases are treated with care. If you were not notified that you would be subject to the interlock requirement for refusing a alcohol breath test, contact our office today for a free consultation.
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