Refusal to take breath test 39:4-50.2 and 39:4-50.4
Kenneth Vercammen’s Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
At our recent NJ Bar seminar, the materials book outlined one of the defenses to refusal.
The question presented on this court is this: Can the State convict a defendant of refusing to submit breath samples if the proofs fail to establish beyond a reasonable doubt that the driver understood a standard statement that was read to the driver?
Our Supreme Court so recognized with its recognition of the confusion doctrine in State v. Leavitt 107 N.J. 534, 542 (1987) Confusion was also acknowledged as a defense to refusal in DMV v Schaltz 4 NJAR 61 (1980)
On a Refusal charge, the court/jury has to be very sure “the defendant refused to submit to a breath test.” Refusal is defined as anything short of an unqualified, unequivocal assent to take the breath test. State v. Pandoli 109 N.J. Super 1 (App. Div. 1990). However, it has been held that an exception to the general rule exists where the defendant proves he was confused. State v. Leavitt 107 N.J. 542 (527 A.2d 403). In particular, a defendant successfully challenges a refusal charge when he shows that, after being given his Constitutional Rights and read the requirement that he take a Breath test, he was confused between the two. Id. The Miranda warnings state that a defendant has the right to remain silent and the right to consult with an attorney; the “implied consent” warnings or Breath test requirement specifically inform the suspect that the right to remain silent and consult with an attorney do not apply to the taking of breath tests. State v. Sherwin 236 N.J. Super. 517 (566 A.2d 536). The fact that the two statements are read one after the other but, at the same time are inherently inconsistent, has been found to confuse suspects. Id. at 518. To avoid confusion regarding the two, the arresting officer should advise the suspect that his right to consult with an attorney before giving any oral or written statement does not give him the right to refuse to give or delay giving the breath sample when requested. Leavitt at 541-542.
In order to prove confusion, the defendant has the burden of proving the claim utilizing a record that has been developed to show that he had indeed been confused. Leavitt at 542. The record may be comprised of videotape of the defendant’s breath testing proceedings, together with all other exhibits and evidence, to sustain the conclusion that the defendant had not been apprised of the relevant legal principles and was confused with respect to the exercise of his rights. Id.
Thus, the municipal court must determine, and the State must prove, whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer....” The State must prove these elements beyond a reasonable doubt. State v. Cummings, 184 N.J. 84 (2005). Proof beyond a reasonable doubt is a very strict standard and means that the jury or judge must be very sure the defendant has done something. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)
The elements at issue in this case are whether he refused to submit to the test upon request of the officer..., N.J.S. 39:4-50.4a(a). and whether the taking of samples [was] made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a).
The Act requires, “A standard statement, prepared by the director, shall be read by the police officer to the person under arrest. N.J.S. 39:4-50.2(e). This statement, by statute, mandates that the police officer shall inform the person tested of the rights N.J.S. 39:4-50.2(d) of the following:
“Zealousness in ridding our roads of drunk drivers cannot overcome our ordinary notions of fairness to those accused of these offenses. State v. Chun, 194 N.J. 118 (2008) and from time to time, courts must re-examine much of our earlier jurisprudence as part of our consideration of the issues raised in this appeal. Id. at 74
II Modern Notions of Due Process and Fair Play Dictate that a Confused Arrestee Should Be Informed of penalties for refusal Before a Court Can Consider the Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt
The NJ Supreme Court held in State v. Marquez 202 NJ 485 (2010) that the refusal warning should be worded so a driver understands the penalties for refusal.
In the Marquez case involving a conviction for refusing to submit to a chemical breath test, the Court held that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.
Also in State v. Marquez 202 NJ 485 (2010), the Supreme Court cited to the decision in Leavitt and did not overrule Leavitt
Refusal penalties are significant. In contrast with the earlier penalties, a first-time offender who today is convicted of refusing to submit to a breath test after being arrested for driving while intoxicated faces a suspension of the driving privileges for a minimum of seven months to a maximum of twelve months, a fine of not less than $500, and mandatory confinement of twelve to forty-eight hours at an Intoxicated Driver Resource Center. *** Those penalties increase for repeat offenders as well as for those offenses committed on or within 1,000 feet of school property or while driving through a school crossing. Those convicted must also pay thousands of dollars in surcharges to the State.
Based on the seriousness of the consequences of a refusal conviction, our Supreme Court in recent years has redefined the offense from civil to quasi-criminal in character. For example, the Supreme Court held that double jeopardy principles barred retrial of a refusal acquittal even though the facts would otherwise support conviction. State v. Cummings, supra at 92-93 (internal citations omitted). Also, the Court elevated the burden of proof required for conviction from preponderance of the evidence to proof beyond a reasonable doubt, State v. Widmaier, 157 N.J. 475 (1999) despite the plain language of the statute. Ordinary notions of due process and fair play, especially within a statutory scheme that contemplates reading a standard statement to convey information to an arrestee, militates against the creation of a conclusive presumption that a mere reading of a standard statement in a way that is unintelligible to particular defendant constitutes proof of an element of the offense beyond a reasonable doubt.
III. Evidence That Defendant Did Not Understand the Standard Statement Required to Be Read to the driver was Palpable, Raising Reasonable Doubt About the Sufficiency of the Evidence Needed to Convict the driver
The defendant was obviously confused by the conflicting Miranda warnings, then Paragraph 36.
39:4-50.4a Refusal to properly submit to chemical test (penalty provision at N.J.S.A. 39:4-50.4a(a) Refusal Statute is 30:4-50.2
1st Offense - $300 to $500 fine, and
and
- DDEF $100, and approx another $300 in court fees
- shall refer offender to IDRC. And $3,000 MVC surcharges
- mandatory car ignition interlock for 6 months-12 months at your expense
Interlock The municipal court shall [revoke the right to operate a motor vehicle of] order any [operator] person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), [shall refuse] refuses to submit , upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) [when requested to do so, for not less than seven months or more than one year unless]:
- 1. (1) if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
[If in connection with 1st DWI then suspended until the defendant installs an interlock for 9-15 months after the license is restored
If in connection with a 2nd DWI license is suspended for 1 to 2 years after the interlock is installed; it shall remain 2 to 4 years after the restoration]
- • ν If in connection with a 2nd DWI license is suspended for 1 to 2 years after the interlock is installed; it shall remain 2 to 4 years after the restoration
- 1. (2) if the refusal was in connection with a second offense under this section, [in which case the revocation period shall be for two years or unless], to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
Third Refusal If the refusal was in connection with a 3rd or subsequent DWI then license is suspended for 8 years after the interlock device is installed and remains 2 to 4 years after the license is restored
All other penalties for refusal are the same – IDRC, Fines, Penalties, etc.
2nd Offense - $500 to $1000 fine, and
Interlock as above
- DDEF $100, and
- shall refer offender to IDRC.
3rd or Subsequent - $1000 fine, and
- driver's license suspension for 10 years (consecutive to any revocation imposed under
N.J.S.A. 39:4-50), and
- DDEF $100, and
- shall refer offender to IDRC.
Plus $3,000 mvc surcharges and 9 car insurance points
39 :4-50.4a Refusal to submit to test; penalties. New penalties December 1, 2019
2. a. The municipal court shall order any person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), refuses to submit, upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2)
(1) if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
(2) if the refusal was in connection with a second offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
(3) if the refusal was in connection with a third or subsequent offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.). A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2 ) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.
b. (Deleted by amendment, P.L.2019, c.248).
L.1981, c.512, s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5; 2004, c.8, s.1; 2007, c.267, s.2; 2009, c.201, s.5; 2019, c.248, s.3.
(1) if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
(2) if the refusal was in connection with a second offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
(3) if the refusal was in connection with a third or subsequent offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.). A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2 ) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.
b. (Deleted by amendment, P.L.2019, c.248).
L.1981, c.512, s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5; 2004, c.8, s.1; 2007, c.267, s.2; 2009, c.201, s.5; 2019, c.248, s.3.
39:4-50.2 Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused.
2. (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 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 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.
(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 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.
L.1966, c.142, s.2; amended 1977, c.29, s.3; 1981, c.512, s.1; 2007, c.267, s.1.
39:4-50.2 Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused.
2. (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 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 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.
L.1966, c.142, s.2; amended 1977, c.29, s.3; 1981, c.512, s.1; 2007, c.267, s.1
(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 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.
L.1966, c.142, s.2; amended 1977, c.29, s.3; 1981, c.512, s.1; 2007, c.267, s.1
