If you have been arrested for refusal to submit a breath test, speak with an experienced DWI defense lawyer right away. You do not have the right to refuse to submit to breath samples in New Jersey. The penalties for refusal are severe and are structured similarly to those for DWI convictions. However, there are defenses to a refusal of a breathalyzer test. Give my office a call for a consultation on your case.
Delay can be a mistake. A critical part of defending against this charge is obtaining and analyzing all available discovery and evidence right away. In some cases expert and medical evaluations must be conducted, which can take time to arrange.
Third (or higher) Offense:
No Operation of a Motor Vehicle
By operating a vehicle on any public road or highway in New Jersey or in a “quasi-public” area, you impliedly consent to an alcohol breath test when requested to do so by a law enforcement officer. It is a defense to a refusal charge that you did not operate your vehicle on a public road or in a quasi-public area. An example would be operating your vehicle in your own driveway.
In some cases, there may be a legitimate dispute whether you operated the vehicle while under the influence of alcohol, or even operated the vehicle at all. These include cases where police observe you walking to your car while apparently intoxicated, and also those involving post-operation investigations by police.
Police must have probable cause to arrest you for operating a motor under the influence before requesting that you consent to an alcohol breath test. Probable cause to arrest is typically based on the observations of the investigating officers. These observations include what the officer sees, smells, and believes after interacting with you and in most cases, administering standard field sobriety tests. While some of these sobriety tests are approved by the National Highway Traffic and Safety Administration and endorsed by the New Jersey State Police, municipal judges will usually consider a wide variety of divided attention tests and observational testimony.
The most common of these sobriety tests are the walk-and-turn test, the one-leg-stand test, and the horizontal gaze nystagmus test (HGN). Police officers are instructed to properly instruct and demonstrate these tests before conducting them. The conditions that the tests are conducted in can also affect your performance on sobriety tests. These include the weather and ground conditions of the evaluation scene.
It is important to note that police officers must have a “reasonable suspicion” that you operated a vehicle while under the influence of drugs or alcohol to even detain you for field sobriety testing in the first place. That you simply committed a motor vehicle violation is not enough in most cases to detain you for sobriety testing. For example, if police stop you for speeding, but do not smell alcohol on your breath and do not detect any articulable sign of intoxication, it can be argued that the results of subsequent breath testing should be thrown out.
Failure of Police to Read Implied Consent Warning
Police must read you the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle before requesting that you provide breath samples. This document is commonly referred to as “paragraph 36”. The police officer’s failure to read you this document may be raised as a defense.
Your inability to comprehend the document may also be raised as a defense. This can be based on a medical problem, a language barrier, or because of the underlying intoxication. This latter claim is known as the “confusion doctrine,” although New Jersey courts have not been overly reception to it.
In some cases, it may be impossible for you to submit to breath testing. These include cases involving extreme intoxication, unconsciousness, and disability. The burden however would probably be placed on the defendant to raise and establish this defense.
If the investigating police officer has probable cause to believe you operated your vehicle while under the influence of alcohol, he or she may then arrest you and request that you submit to breath samples. After being read the standard implied consent warning, anything but an unequivocal assent can be deemed a refusal to submit.
Unlike your rights concerning interrogation by police, you do not have the right to speak to an attorney before submitting to alcohol breath testing. Remaining silent, questioning the police officer, or any other equivocation can be deemed a refusal by the arresting officer.
Any kind of express refusal to submit can obviously satisfy the statute. A failure to complete the breath test sequence, such as a failure to provide enough volume or breath or for a long enough duration, can also be deemed a refusal.
If you have been arrested for refusal to submit to breath samples, contact The Law Offices of Anthony J. Vecchio, LLC to speak with an experienced DWI defense lawyer. I have defended clients across the State of New Jersey against every type of DWI related arrest. I would be happy to answer your questions and guide you though the process.
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