The New Jersey Supreme Court recently clarified when a police officer giving a blood alcohol content test with a breathalyzer needs to provide an additional statement that warns the person taking the test that their failure to properly take the test constitutes a “refusal” and subjects them to additional criminal charges. This is particularly relevant information for Atlantic City DUI/DWI attorneys:

Aaron Schmidt was stopped at 2:36 a.m. and, after smelling alcohol on Schmidt’s breath and noticing bloodshot eyes, police requested he perform the standard field sobriety tests. Schmidt stated because of the physical handicap, he would be unable to perform the tests.

The officer then arrested him and brought him to police headquarters. There, he was read the “Standard Statement” that explains:

  • why he was arrested
  • that the law requires that the defendant provide the required breath samples
  • that a record of the taking of samples will be made and a copy provided to the defendant upon request
  • that the Miranda warnings earlier provided do not apply to the taking of breath samples and that the defendant has no right to have anyone else present during the procedure
  • that the defendant has the right, at his own expense, to perform independent testing of the samples
  • that if the defendant refuses to provide the samples, he will be issued a separate summons for the refusal
  • that any ambiguous or conditional response also will be treated as a refusal
  • that certain minimum penalties apply for refusal
  • that, again, defendant is required by law to provide the required samples.

Schmidt agreed to the breath test, but, in three attempts, failed to provide an adequate breath sample for the machine to generate a valid result.

In New Jersey, the failure to provide an adequate breath sample is deemed a refusal to take the test and is brought as separate charge in addition to the DWI charge.

The Supreme Court has noted that where a driver’s failure to give an unequivocal and unambiguous assent to take the test, the officer is required to give the “additional statement.”

The additional statement is used when a defendant:

  • remains silent; or
  • states, or otherwise indicates, that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person;
  • if the response is ambiguous or conditional, in any respect whatsoever.”

The Additional Statement for Breathalyzer Refusal

When a driver by word or conduct refuses to provide a breath sample, the officer must read the following “additional statement:”

I 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 to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, 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.

The municipal court and the Law Division ruled that because of Schmidt’s consent to take the test, his later failure to provide an adequate breath sample did not make that consent conditional, and therefore did not require the reading of the additional statement.

The Appellate Division

The Appellate Division, however, did think that the conduct was sufficiently ambiguous to require the additional statement to be read. The State appealed.

The New Jersey Supreme Court

The Supreme Court saw the question as whether defendant’s failure to provide proper breath samples despite repeated warnings, standing alone, was sufficiently “ambiguous or conditional” to require the reading of the Additional Statement.

Their short answer was no. They agreed that because of his unequivocal consent to take the test, his later failures did not make that consent conditional or equivocal.

The court stated:

“Here, defendant clearly and specifically was informed that his failure to provide sufficient breath to produce a valid test result during his third try would be considered a refusal, and there was nothing ambiguous or conditional either in the warning provided or in defendant’s failure to heed that warning.”

The court was also influenced by the fact that the officer had told Schmidt (but failed to note it in his police report) before his third attempt that if he failed to provide a sufficient breath sample, it would be considered a refusal and he could be prosecuted for the additional charge.

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An Additional Non-Additional Statement

The court went on to suggest that to prevent cases similar to this one, law enforcement authorities should amend the Standard Statement to include language that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test.

For drivers with difficulty blowing an adequate breath sample, and especially those who are confused or don’t fully understand the police officers instructions, refusal can be a significant problem. If you have been stopped for a DWI and charged with refusal, speak with a knowledgeable DWI defense attorney, who can review your facts and assist with your defense.