New Jersey Refusal to blow charges under NJSA 39:4-50.4a, can be difficult to challenge. They require creativity and careful analysis of the evidence your case. Give my office a call to speak with an experienced DWI & Refusal defense lawyer. There are ways to defend a Refusal arrest. One is based on your inability to understand and recognize your requirement to submit to breath testing. The obvious fact that many Refusal defendants are intoxicated leads to an issue regarding your ability to understand New Jersey’s implied consent law. This is especially so during the overwhelming and outright horrifying experience of being arrested for drunk driving. However, there can be other reasons for your confusion.
For example, the police officer who requested you submit to breath samples may have not allowed you to read the implied consent form or may have given you improper advice or instruction. The New Jersey Supreme Court has neither barred nor endorsed the so-called “confusion doctrine.” However, in discussing the doctrine, the Court has noted that the “exclusive, narrow exception to the general rule that refusals cannot be validly justified,” must be premised on facts shown by a defendant that he or she had indeed been confused regarding the implied consent of motorists to submit to breath testing. State v. Leavitt, 107 N.J. 534, 542 (1987). The Court based this statement on the observation that, “despite the best efforts of police officers, some confusion may remain.” A defendant seeking to establish a claim of confusion bears the burden of proof. Scant appellate decisions exist on the confusion doctrine. However, throughout the more notable decisions available, the common refrain is that the defendants’ failure to make any showing of actual confusion doomed their application. This case is distinguishable as the defendant here, and the corroborating video, both attest to the defendant’s genuine confusion.
In State v. Sherwin, the defendant was given his Miranda warnings at the time of arrest and again at the station. 236 N.J. Super. 510, 518 (App. Div. 1989). Prior to the breathalyzer test the officer read the required refusal to blow form to the defendant. After defendant failed to respond to the request for a breath sample, a second warning was given. This second warning re-emphasized the fact that the right to remain silent did not give defendant the right to refuse to give samples of his breath. The Sherwin court noted that the defendant failed to offer any shred of affirmative evidence of his asserted “claim of confusion” upon hearing the refusal warnings, much less carried his burden of persuasion on the issue.
In State v. Federico the defendant raised confusion as a defense to his refusal charge. The Federico court found that there was evidence which supported the conclusion that defendant understood what the officers were saying to him. 414 N.J. Super. 321, 327-328 (App. Div. 2010). The trial court found that defendant’s explanations of what he did “for this town” were an “attempt to gain favor with the police officers” and his insistence that his condition was not caused by drinking reveals he understood his circumstance.
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