New Jersey DWI Refusal Offenses

I. THE NEW JERSEY REFUSAL STATUTES REQUIRE DRIVERS TO PROVIDE BREATH SAMPLES UPON AN OFFICER’S REQUEST AND FAILING TO DO SO IS PUNISHABLE UNDER LAW. The State of New Jersey requires all drivers to consent to providing alcohol breath samples upon an officer’s request. N.J. Stat. Ann. § 39:4-50.2(a) (West 2010). The Refusal Statute requires an officer’s request to be based on reasonable grounds to support a driving while intoxicated violation, and furthermore, requires that defendants voluntarily provide breath samples without force. N.J. Stat. Ann. § 39:4-50.2(e) (West 2010); State v. Schmidt, 997 A.2d 1092, 1093 (N.J. Super. 2010). When defendant refuses to comply with the request, statute obligates officers to inform defendants of the legal necessity to consent and the consequences of failing to do so. State v. Spell, 959 A.2d 1209, 1210 (N.J. 2008). A second refusal to comply with the request is the basis for a refusal conviction and is punishable by a license suspension of no less than seven months or more than one year for first time offenders, in addition to fines ranging from $300 to $1,000. Second and third time offenders are subject to a two and ten year suspension, respectively, and are subject to fines ranging from $500 to $1,000. N.J. Stat. Ann. § 39:4-50.4(a)(b) (West 2010). When a driver is charged with refusal to consent, the State bears the burden of proving beyond a reasonable doubt that the officer acted upon reasonable grounds to form the belief that the defendant committed a DWI offense, and that the officer informed defendant of the legal necessity to consent. State v. Cummings, 875 A.2d 906, 913 (N.J. 2005). To sustain conviction the State must demonstrate four elements: (1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of its necessity and the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test. N.J. Stat. Ann. § 39:4-50.2(e) (West 2010); N.J. Stat. Ann. § 39:4-50.4(a) (West 2010); State v. Marquez, 998 A.2d 421, 433 (N.J. 2010); State v. Wright, 527 A.2d 379, 380 (N.J. 1987). II. THE STATE MUST DEMONSTRATE THAT THE ARRESTING OFFICER HAD PROBABLE CAUSE TO BELIEVE THAT DEFENDANT HAD BEEN DRIVING OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS. The New Jersey informed consent laws require officers to have reasonable grounds on which to request a breath sample. N.J. Stat. Ann. § 39:4-50.2(a) The Court held that reasonable grounds means probable cause, existing when facts known to the officer warrant a belief that the offense has been committed. In re Garber, 347 A.2d 297, 299 (N.J. App. 1976) citing State v. Smith, 181 A.2d 761, 763 (N.J. 1962). Garber also holds that officers are not limited by court admissible evidence in formulating the belief that an offense has occurred. In re Garber, 347 A.2d 297, 299 (N.J. App. 1976) citing State v. Cook, 221 A.2d 212, 218 (N.J. 1966). The Court described probable cause as a “commonsensible rather than a technical concept”. Id. Commonsense indicators recognized by Garber include reckless driving patterns, slurred speech and the scent of alcohol, inclusively. Id. at 300. Such facts constitute reasonable grounds that would lead to an officer’s belief that a driving while intoxicated offense has been committed. Id. III. THE DEFENDANT MUST HAVE BEEN ARRESSTED FOR DRIVING WHILE INTOXICATED. The offense of driving while intoxicated is independent of the offense of refusing to consent. Marquez at 438. Whereas the former may be convicted based solely on an officer’s observation, a refusal conviction necessarily requires an arrest for the former. Id. Therefore the State must also demonstrate that the defendant was arrested for driving while intoxicated to sustain a refusal to consent conviction. Marquez at 433. III. THE OFFICER MUST REQUEST DEFENDANT TO SUBMIT A CHEMICAL BREATH TEST, AND MUST INFORM DEFENDANT OF ITS LEGAL REQUIREMENT AND THE CONSEQUENCES OF REFUSING TO DO SO. a. Officers are required to inform drivers of the legal nature to consent and the consequences of refusal. The refusal statute obligates officers to inform drivers of the legal requirement to consent. N.J. Stat. Ann. § 39:4-50.2(e) (West 2010). This obligation is satisfied when the officer reads the first part of the Standard Statement (hereafter referred to as “Statement”) as prepared by the director of the Motor Vehicle Commission. Marquez at 433 citing State v. Duffy, 792 A.2d 555, 557 (App. Div. 2002); N.J. Stat. Ann. § 39:4-50.2(e) (West 2010). In requiring the Statement to be read, the legislature intended on informing defendants of the legal necessity, limited rights to counsel (for purposes of the test), and the need for unequivocal affirmative consent. Marquez at. 432. Furthermore, Marquez held that a “fatal defect” occurs in the State’s case when an officer fails to inform defendant that his response constitutes a refusal. Id. The second part of the Statement is necessary only in circumstances when consent has been provided ambiguously or conditionally. Spell at 1210. The second part of the Statement warns the operator of the consequences of failing to consent, and was added by the Widmaier Court to ensure that defendant is aware that ambiguous or conditional consents will constitute a refusal. Schmidt at 1096 citing State v. Widmaier, 724 A.2d 241, 252 (N.J. 1999). b. Although the obligation to inform must be communicated in a language understood by the driver, its unnecessary for the State to demonstrate that the driver actually understood the information. The Court held that the Refusal Statute’s legislative intent directs officers to inform in a language understood by the defendant. Marquez at 434. Reading the Statement in English to a defendant who exclusively speaks a language other than English, was described by the court as an “obvious” failure to satisfy the statutory requirement to inform. Id. at 436. In such circumstances the Court requires officers to exert alternative efforts to inform the defendant. Id. i. Officer’s are required to extend their efforts to inform non-English speak defendant’s but only to a limited extent. In Marquez, the Court uses an objective standard to measure the extent to which officers should act to inform non-English speaking defendants. Id. at 438. The Court explains that orally informing a hearing impaired, non-lip reading driver would fail to constitute a proper informing. Id. at 434. This is so because the law requires the officer to inform in a manner understood by the hearing impaired driver, suggesting that a written copy of the Standard would exclusively suffice to informing such a defendant. Id. The Marquez Court included this hypothetical to draw analogy to its holding that an officer must exert additional effort to inform a Spanish speaking defendant. Id. The Court however falls short of requiring the officer to guarantee that his efforts successfully informed the defendant. Id. Whatever additional effort is required of the officer to properly inform, it’s unnecessary for him to ensure that his attempt was successful. Id. at 438. Furthermore, a defendant informed in his native language but too drunk to understand is found by the Court to be properly informed. Id. The Court held that the obligation to inform is an objective standard which precludes the State from having to prove that the driver understood the warning on a “subjective level”. Id. IV. DEFENDANT THEREAFTER REFUSED TO SUBMIT TO THE BREATHALAYZER TEST. For the State to sustain a refusal conviction, it must demonstrate that the defendant refused to submit breath samples for the purpose of a Breathalyzer test. Wright at 380. The Court held that the defendant’s subjective intent is irrelevant for purposes of determining whether a response constitutes a refusal. Marquez at 438. The Court also explains that a refusal constitutes a response that is anything less than an unequivocal assent to the officer’s request. State v. Widmaier, 724 A.2d 241, 247 (N.J. 1999) Widmaier also held that the defendant’s consent on the condition of counsel present constitutes a refusal, as does any other conditional or ambiguous consent. Schmidt at 1097 (citing Widmaier at 252). Widmaier paved the way for revisions to the Statement by adding a second part that intended to inform defendants that providing a conditional or an ambiguous consent would result in a refusal charge filed against them. Schmidt at 1096. The Widmaier Court instructs officers to read this part of the Statement when a response is “conditional in any respect, whatsoever”. Id. The Schmidt Court recently expanded upon Widmaier in considering whether failed attempts to produce sufficient airflow in a Breathalyzer constitute a refusal, absent a reading of the second part of the Statement. Id. at 1094, 1098. In Schmidt, the officer threatened the defendant with a refusal charge after two unsuccessful attempts by the defendant to produce the necessary airflow in a Breathalyzer test. Id. at 1095. The third breath sample failed and the officer proceeded to charge the defendant with the refusal to consent. Id. Schmidt held that the officer erred in charging the defendant without reading him the second part of the Standard Statement, citing holdings in Widmaier and Duffy. Id. at 1097. The Schmidt Court coupled the decisions from the Widmaier (requiring the second part of the Statement to be read when the response is at all ambiguous) and Duffy (a reading of the second part of the statement is required once officer considers a response to constitute a refusal) to hold that absent a reading of the second part of the Statement, there remained an ambiguity as to the defendant’s purpose. Id. The Schmidt Court held that without a reading of the second part of the Statement, the State was unable to prove defendant’s unwillingness as opposed to his inability to provide proper breath samples; the Court reversed the defendant’s conviction. IV. CONCLUSION The Refusal Statute has been an issue of recent scrutiny by the New Jersey Supreme and Appellate Courts, resulting in the development of new and significant precedent. Marquez and Schmidt placed added responsibilities on an officers’ obligation to inform, requiring officer’s to exert additional efforts to make their requests objectively clear, and requiring that a defendant’s refusal to consent is understood by both the officer and the defendant. Broadly speaking, these holdings also indicate the Court’s willingness to recognize defendant’s Constitutional right to due process and point towards a pro-defendant trend in New Jersey Refusal cases. APPENDIX - A NEW JERSEY REFUSAL STATUTE N.J. Stat. § 39:4-50.2 (2010) § 39:4-50.2. Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act [C.39:4-50.1 et seq.] and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14). (b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested. (c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection. (d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section. (e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 [C.39:4-50.4a] of this amendatory and supplementary act. A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest. APPENDIX – B Second Part of the MVC Standard Statement I have previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you a right to refuse to give, or delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. If you (1) do not respond to my question about submitting breath samples; or (2) tell me that you refuse to answer this question because you have a right to remain silent or first wish to consult with an attorney, physician or any other person; or (3) tell me that you will not submit breath samples because you have a right to remain silent or first wish to consult with an attorney, physician, or any other person, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Source: State v. Schmidt, 997 A.2d 1092, 1096 (N.J. Super. App. 2010).

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