This week Jersey City cops charged a local firefighter with refusal to submit to a breath test, among other offenses. The cops claim he drove a 2005 Cadillac Escalade through an intersection they had closed due to a four-car collision. Additionally, they claim he sped through the area and ignored orders to stop. They also claim he drove around a marked police car with its lights on. Furthermore, he almost clipped two police officers investigating the motor-vehicle accident. The firefighter allegedly had glassy, dilated eyes, could not speak full sentences, and could not complete the field sobriety tests. They also claim the firefighter allegedly cried and laughed uncontrollably during the stop. The cops charged him with refusal to submit to breath test and six additional offenses, per nj dot com.

Refusal to Submit to Breath Test

Implied Consent Statute, N.J.S.A. 39:4-50.2

Under New Jersey law, 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… Nevertheless, no chemical test or specimen necessary thereto, may be made or taken forcibly and against physical resistance by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test.

Refusal to Submit to Breath Test, N.J.S.A. 39:4-50.4a

The municipal court shall determine by proof beyond a reasonable doubt¹ whether:

1. 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;
2. the person was placed under arrest, if appropriate, and
3. he refused to submit to the test upon request of the officer.

Refusal to Submit to Breath Test, Elements

Though not immediately obvious from the refusal statute, the State must prove the following elements beyond a reasonable doubt:

1. the arresting officer had probable cause to believe the defendant was driving or was in actual physical control of a motor vehicle on a public road, street, highway, or quasi-public area of this State while under the influence of alcohol or drugs,
2. the officer arrested the defendant for driving while intoxicated
3. the officer asked the defendant to submit to a chemical breath test and informed the defendant of the consequences of refusing in a language the defendant could understand while sober and,
4. the defendant refused to submit to the test.

New Jersey DUI Lawyer Michael Smolensky, Esquire, knows how to protect his clients. A charge of Refusal to Submit to Breath Test calls for an aggressive defense. Mr. Smolensky can provide consultations for all cases involving Refusal. Call Now—(856) 812-0321.

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¹ State v. Cummings, 184 N.J. 84 (2005).