NJ Case Law - State v. Schmidt

Nature of Case Refusal to submit to a breathalyzer test appeal Facts
On November 29th, 2007, at approximately 2:36 a.m., Sergeant Joe Morgan observed the defendant driving 10 miles below the speed limit. Morgan stopped Schmidt after his car crossed both the shoulder and the double yellow lines and swerved back onto the main road. Morgan noticed a smell of alcohol, and after Schmidt failed sobriety tests, Morgan arrested him.

Morgan took Schmidt to the police station, processed him, and read him his Miranda rights. Schmidt consented to given a breath sample and stated that he understood how to properly provide a breath sample. Nevertheless, his first attempt lasted 15 times less than the required duration. He was then re-instructed and tried again. His second attempt provided .3 liters less breath than was required for the breath sample. He was told that if he failed a third time, then he would be “considered a refusal.” He then failed a third time and was charged with refusal.

Procedural History
At trial, the defense argued that the officer was required to read the second part of the warnings prior to charging defendant with refusal for the charge to be valid. The second part informs the officer, that if the prior response was ambiguous or condition, to ask the driver to submit to a breath test after reiterating the warnings adding that the previous response or silence is inadequate and will result in a separate charge of refusal. This argument was rejected by the trial judge and Schmidt was convicted.
On appeal to the Law Division, the defense argued that the insufficient attempts to submit to the test rendered defendant’s consent ambiguous and triggered the requirement that the officer read the second part of the warnings. The defense added that insufficient attempts also required the officer to keep trying to get a sufficient breath sample up to the maximum number of 11 attempts that the machine allows. The judge ruled that his response was unambiguous and that the officer was not required to keep trying to get a valid breath sample.

Issue(s):

Must the police officers comply with N.J.S.A. 39:4-50.2(e) by reading the standard language concerning the consequences of a refusal when a defendant unequivocally agrees to submit to an Alcotest but then fails to produce a valid sample?
How many attempts to provide a minimum 1.5 liter breath sample must a police officer allow before charging the defendant with refusal?

Holding
Reversed. Yes, consenting to the breathalyzer test but then blowing not hard enough or not long enough is an ambiguous response which triggers the requirement that police officers read the second part of the warnings. No, the number of attempts is left to the discretion of the officer absent any reasonable explanation for failure.

Rationale
Two precedents with factually different but similarly ambiguous statements guided the court to conclude that the officers must read the second part of the warnings in this case. In State v. Widmaier, 157 N.J. 475 (1999), defendant responded to the first part of the warnings with “Sir, I would like you to call Francis Xavier Moore, my attorney.” Id. at 484. After the defendant heard the second part of the warnings, he stated: “I agree to the samples of my breath, but I would like my attorney present for calibration purposes.” Id. at 485. The municipal judge held that this was an unequivocal consent. But the Supreme Court stated that this type of response was ambiguous.
In State v. Duffy, 348 N.J.Super. 609 (App.Div.2002), defendant first refused to take the test on the account of sickness, then changed his mind but subsequently tried to stick his fingers down his throat as if to throw up, and finally stated “I'll take the test, but it's under duress.” The officer then charged him with refusal and the municipal court subsequently convicted him. On appeal, the court held that even though “considerable reservation” existed as to whether or not Duffy’s response placed a condition on his consent, once the officer interpreted the response as a refusal, he was obligated to read the second part of the warnings. Id. at 612-13.
The court then reasoned that Schmidt’s attempts were equivalent to the defendant’s attempts in Widmaier and Duffy. In Widmaier, defendant stated that he consents but wants an attorney. In Duffy, defendant stated that he consents but that his consent was not voluntary. In this case, defendant consented but then, through his acts, added an unspoken condition that he will not blow hard enough or long enough for the officer to get a proper breath sample. Schdmit’s consent and his subsequent acts are distinguished from an unequivocal refusal, which does not trigger the requirement that the officer must read the second part of the warnings. State v. Spell, 196 N.J. 537, 539-40 (2008). Therefore, the officer should have read the second part of the warnings.
In regards to the defense’s second argument – that the officer must allow the maximum number of attempts when drivers produce inadequate samples – the court held that “[s]o long as the second part of the [warnings] is read and the defendant, without reasonable excuse, continues to produce inadequate breath samples, we find it to be within a police officer's discretion to terminate the Alcotest and charge the defendant with refusal.”



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