New Jersey Statute on Breath Testing for DWI Requires Unconditional “Yes” to Avoid Refusal Charge, Court Holds

A recent decision by the Superior Court of New Jersey, State v. O’Neill, highlights two important features of New Jersey driving while intoxicated (DWI) laws. First, the court held that, under New Jersey’s implied consent law, any response other than an unambiguous “yes” to an officer’s request to submit to breath testing may be deemed a refusal. Even verbal consent by a person to breath testing, as long as her mother remained with her, could be considered “refusal” under this interpretation of the law. Second, state law requires officers to read a statement regarding implied consent and refusal, and as long as an officer reads the statement prior to taking a breath sample, the state has fulfilled its duty under the law. This applies even if the statement omits information any defendant might reasonably find useful.

The defendant was stopped by a police officer in Bernard Township, New Jersey on January 19, 2013, allegedly for speeding. The officer determined that she had consumed alcohol before driving, although the court does not say how. After placing her under arrest and transporting her to police headquarters, the officer read the New Jersey Attorney General’s Standard Statement for Motor Vehicle Operators (the “Standard Statement”) aloud to her. The defendant responded that she would agree to testing if her mother could be with her. Because this response was “conditional,” rather than “yes,” the officer read the final section of the Standard Statement, which states that she could be charged with refusal for any answer “other than ‘yes.’” The defendant replied “no.”

The officer charged the defendant with DWI, refusal to submit to breath testing, speeding, and failing to produce documentation. The defendant filed a motion to dismiss the refusal charge in the municipal court, arguing that the state did not fulfill its statutory duties because it failed to advise her of the minimum penalties if she were to be convicted of refusal. The municipal court denied her motion. The defendant pleaded guilty to DWI, and entered a conditional plea of guilty to refusal, reserving her right to appeal the dismissal motion. The Law Division denied her appeal, and the case went before the Superior Court.

The Superior Court affirmed the lower court rulings, finding that the state met its obligations under the law. The state’s obligation regarding the implied consent law is to read a pre-written statement to a DWI suspect, and nothing more. The Standard Statement includes a brief listing of maximum penalties for conviction of refusal, but does not mention mandatory minimum penalties. The court found no authority requiring the state to read anything beyond the Standard Statement as written.

However bizarre it may seem to others, the court further found that the implied consent law allows the state to treat anything other than “yes” as refusal to submit to breath testing. It cited a 2007 Appellate Division case, State v. Spell, which held that courts could find refusal to submit in “anything substantially short of an unconditional, unequivocal assent to an officer’s request.”

An arrest for alleged DWI can have serious consequences, including license suspension, even if you are never charged with an offense. If you have been arrested or are facing DWI charges, you should consult with a knowledgeable and skilled DWI attorney. At Levow & Associates, we have dedicated our law practice exclusively to New Jersey DWI defense. Please contact us online or at (877) 593-1717 to schedule a free and confidential consultation to discuss your case. We are available to help you 24/7.

More Blog Posts:

Defending a New Jersey DWI Refusal Charge after Schmidt: What’s Left? New Jersey DWI Attorney Blog, June 8, 2011

Insufficient New Jersey DWI Breath Samples: “I blew into the machine, but I was charged with Refusal”, New Jersey DWI Attorney Blog, June 1, 2011

Implied Consent Warnings in New Jersey DWI Cases: “But, I don’t speak English!”, New Jersey DWI Attorney Blog, April 11, 2011