New Jersey Drunk Driving (DWI) Defense Series: The Refusal Offense (3 of 7)

The body of law that relates to a Refusal Offense begins with a statute that states, in essence, that when you receive a driver's license in New Jersey, you impliedly consent to provide a breath test when a proper request is made by a law enforcement official. (Implied Consent Statute). The integrity of this so-called legal "fiction" has confounded scholars for decades and, while we will have to leave discussions of the intellectual frailties associated with this fanciful proposition for another day, the law is clear: if a police officer makes a reasonable determination that you were driving a motor vehicle while under the influence of any intoxicant, you must submit to a breath test. No excuses and no exceptions.

Although the express language of the Implied Consent Statute requires the government to prove a Refusal Offense by a preponderance of evidence, which is the standard of proof used in civil cases, New Jersey's Supreme Court has concluded that, despite this legislative instruction, the standard of proof is "reasonable doubt," which is the standard in criminal cases.

In order for the government to prove a Refusal Offense, it must establish that: (A) there was probable cause to believe you were driving under the influence; (B) the operation of the vehicle took place on a public road or quasi-public area; (C) you were arrested; (D) you refused the breath test when requested by a police officer; and, (E) efforts to administer the test were consistent with the Implied Consent Statute, including the need to read to you well-delineated instructions as to the consequences of your refusal to provide a breath sample.

The most significant areas of contest in a Refusal Offense case are whether the government's agent had probable cause to request the breath test or whether you refused that request. As to the former, it should be immediately recognized that probable cause is the lowest standard of proof known to the American Criminal Justice System. Historically, it has been defined to be something more than mere suspicion, but a lot less than reasonable doubt, which is the standard of proof required in all criminal prosecutions. It is rare occasion when a police officer can not prove probable cause to believe that you were operating a motor vehicle while under the influence of alcohol or drugs. Some of the cases have found probable cause where there is merely erratic driving, an odor of alcohol about the subject's breath and only one additional symptom of intoxication.

With respect to whether there was a refusal, case law has said, time-and-time again, that your consent must be unqualified. You can be convicted of a Refusal Offense if you: (A) refuse to answer a police officer's request to take a breath test; (B) attempt to delay the administration of the test; (C) try to place a condition on your consent (i.e. yes, but first I'd like to talk to a lawyer); or (D) fail to provide a sufficient breath sample to allow the Breathalyzer to function properly.

Further, it is no defense that you were confused by the instructions or warnings given by the police officer. Indeed, in one case, a judge concluded that an arrestee, who spoke only Spanish, could not complain that the instructions given to him by the investigating police officer were defective because they were read to him only in English.

When you are charged with a Refusal Offense, you are almost certain to be charged with a DWI Offense. Your refusal to submit to a breath test will be used as evidence to convict you of the DWI Offense. If you are convicted of both offenses, your penalties will be consecutive, not concurrent, which means that if you are a first-time DWI offender and first-time Refusal offender where your BAC was in excess of .08%, but less than .10%, you may receive a minimum driver=s license suspension term of 7-months for the DWI Offense and an additional minimum suspension of 7-months for the Refusal Offense, which will begin to run only after the first 7-month term of suspension under the DWI Offense has been completed.

Copyright (c) 2008 Frank Luciano

Article Source: http://www.rightbiz.com

Frank T. Luciano, P.C. 147 Main Street, Suite 5 Lodi, NJ 07644 (973) 471-0004 ftluciano@aol.com www.ftlucianolaw.com

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