New Jersey law contains two different, but related, provisions related to driving while intoxicated (DWI). The DWI statute addresses the actual alleged act of driving while under the influence of alcohol or another intoxicating substance. The refusal statute deals with drivers who refuse to submit to breath or blood testing to determine the amount of alcohol in their bloodstreams. State law requires police to read a statement to a suspect regarding the consequences of refusing to submit to chemical testing. A recent court decision, State v. Peralta, clarifies whether a failure to read that statement requires a court to dismiss any resulting charges. An unpublished court decision from about four years ago, State v. Tirado, suggested that such failure requires dismissal of all charges, even DWI, but Peralta holds that it only affects the outcome of a refusal charge. Peralta effectively overrules Tirado, which offered a loophole as a sort of defense in DWI cases.
The New Jersey Motor Vehicle Commission has issued a “Standard Statement for Operators of a Motor Vehicle” (“Standard Statement”), which police must recite to a suspect before administering a blood or breath test. Refusal to submit to testing may result in license suspension, a fine, and other penalties. Courts have generally held that reading the Standard Statement is required to obtain a conviction for refusal, but Tirado, a 2010 decision by the Superior Court, Appellate Division, expanded this to a DWI case. The court found that the state had not proven that an officer read the Standard Statement to the defendant before administering a breathalyzer test and partly reversed the defendant’s DWI conviction as a result. Since the decision is unpublished, it is not binding authority in other DWI cases, but it has come up in cases where police made similar omissions.
In Peralta, a municipal judge convicted the defendant of DWI based on evidence from a breathalyzer test that showed 0.19 percent blood alcohol content (BAC), more than twice the legal limit. The defendant, who was not charged with refusal, appealed the DWI conviction in part based on the failure by police to read the Standard Statement before administering the breath test. The court noted that the defendant relied on an unpublished case in making his argument but does not identify the case. It held that the failure to read the Standard Statement was not relevant to the DWI case.
The appellate court cited a published 2010 decision from the New Jersey Supreme Court, State v. Marquez, instead of the unpublished Tirado. Marquez held that the Standard Statement is required in any prosecution for refusal, and that the purpose of the Standard Statement was to ensure that drivers were advised of the implied consent law and the consequences of refusing to submit to testing. The court in Peralta rejected the defendant’s argument that failure to read the Standard Statement is fatal to a DWI prosecution and affirmed the conviction.
If you have been arrested or charged with DWI, you should consult with a qualified and skilled DWI attorney who can advise you of your rights and guide you through the process of a criminal case. At Levow & Associates, we have dedicated 100% of our law practice to DWI defense. To schedule a free and confidential consultation with a member of our team, contact us online or at (877) 975-3399.
More Blog Posts:
New Jersey Statute on Breath Testing for DWI Requires Unconditional “Yes” to Avoid Refusal Charge, Court Holds, New Jersey DWI Attorney Blog, July 7, 2014
Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects, New Jersey DWI Attorney Blog, July 2, 2014
Refusing to take a Breath Test in New Jersey: “No” does not always mean “conviction”, New Jersey DWI Attorney Blog, September 14, 2010