The New Jersey Supreme Court’s 2008 ruling in State v. Chun is one of the most important decisions affecting the rights of DWI defendants in this state. It caused major changes in how the state uses Alcotest machines to collect breath samples from DWI suspects. Chun also established mandatory procedures that safeguard DWI suspects against inaccurate test results, including a 20-minute waiting period prior to a breath test. In some situations, however, an individual could open themselves up to a charge of refusal to submit to a breath test, if an officer concludes that they are intentionally stalling.
Chun established that an officer must wait 20 minutes before collecting breath samples from a suspect, in order to ensure that no foreign substances are present in or around the suspect’s mouth that could affect the test results. During this time, the officer who will administer the test must observe the suspect to see if they place anything in their mouth, or if they swallow or regurgitate anything. If the officer notices anything entering or exiting the person’s mouth, notices that the person has gum or chewing tobacco in their mouth, or sees the person touch their mouth with their hand or any other object, the 20-minute observation period must start over.
This waiting period could come into conflict with New Jersey laws regarding implied consent to breath or blood testing. An individual who is instructed to provide a breath sample based on probable cause to suspect DWI may face a separate charge for refusal if they give anything short of total cooperation to the officer. Courts have sustained refusal convictions in cases where individuals failed to submit enough of a sample for the device to conduct an accurate test, and even cases in which a defendant agreed to submit a breath sample but tried to add a condition for doing so. This raises the question of whether a New Jersey DWI defendant could face a refusal charge for requiring multiple re-starts of the 20-minute Chun observation period.
The New Jersey Supreme Court addressed this question as a hypothetical in its 2010 ruling in State v. Schmidt. It provided several examples of conduct that could be interpreted by an officer as refusal, including a person “who places foreign objects in his mouth…for the sole purpose of affecting the test results.” In 2011, the Superior Court, Appellate Division considered the state’s allegation, in State v. Korpita, that the defendant deliberately caused the observation period to start over, resulting in a refusal charge after more than an hour of waiting. The court affirmed the lower court’s refusal conviction.
The officer who attempted to administer the breath test in Korpita testified that the defendant repeatedly belched during the 20-minute observation period, requiring him to re-start the 20 minutes each time. The arresting officer testified that the defendant never belched from the time of the traffic stop until the other officer arrived to administer the breath test. They stated that the defendant belched 78 times in the following 75 minutes, claiming that it was “indigestion from eating escargot at dinner.” After 75 minutes, the defendant was charged with refusal, and the officers stated that the belching stopped. The Appellate Division affirmed the conviction, ruling that the evidence indicated that the defendant’s “motivation…was to thwart the Alcotest being performed at all.”
If you are charged with DWI in New Jersey, an experienced and skilled DWI lawyer can help you understand your rights and prepare your defense. Levow DWI Law, P.C. has dedicated 100% of its law practice to defending DWI cases. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
New Jersey Appellate Court Applies Alcotest Rules Established in State v. Chun, New Jersey DWI Attorney Blog, June 17, 2015
DWI Appeal Claims Faulty Alcotest Machine Invalidates Conviction, New Jersey DWI Attorney Blog, April 13, 2015
Defining Defense and Prosecution of DWI in New Jersey: State v. Chun, New Jersey DWI Attorney Blog, August 30, 2010