Previously I blogged about Refusal to Submit to Breath Test with respect to New Jersey’s drunk driving statute. Today I stumbled upon an infographic, however, purporting to explain individual rights. Indeed, this document included decorative colors, impressive photography, and concise language. Of course, this begs the question: why do these features persuade a person to want to believe what the document says? Nevertheless, some of the points appeared to be legally correct. But with respect to whether one must submit to a breath test, this infographic declared—in all caps, no less—you have the right to refuse. Though possibly true where the creator of this infographic lives, this directly contradicts New Jersey’s Implied Consent statute.¹

New Jersey’s Implied Consent Statute and Breath Test Refusal

New Jersey’s Implied Consent statute provides, in pertinent part,

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…²

New Jersey’s Implied Consent statute also requires the police officer with reasonable grounds to believe the subject violated the drunk driving statute to inform subject of his rights with respect to breath samples.³ Indeed, the law contemplates this procedure will take place after the police officer has arrested the subject. Additionally, an arrest confers control upon the police. In addition to Miranda rights⁴, which do not apply to the chemical test procedures (or standardized field sobriety tests), the officer must inform the subject of right to

1. Request and obtain a copy of the chemical test record, which discloses the date, time, and result of the test⁵, and
2. Have the samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.⁶

Furthermore, the law prohibits the police from making or taking samples forcibly and against physical resistance. But under New Jersey’s Implied Consent statute, the subject does not have the right to refuse.

Standard Statement for Operators of a Motor Vehicle, a.k.a. Paragraph 36

In order to carry out the intent of the law, the officer must enter the defendant’s name, read, and complete the N.J. Attorney General’s Standard Statement for Motor Vehicle Operators (form). This differs from the form for cases involving commercial vehicles, N.J.S.A. 39:3-10.24, and cases involving operation of vessels, N.J.S.A. 12:7-46.

The officer must read the following out loud:

1. You have been arrested for driving while intoxicated. N.J.S.A. 39:4-50.
2. The law requires you to submit samples of your breath for the purpose of testing to determine alcohol content.
3. A record of the taking of the breath samples, including the test results, will be made. Upon your request, a copy of that record will be made available to you.
4. After you have provided samples of your breath for testing, you have the right, at your own expense, to have a person or physician of your own selection take independent samples of your breath, blood or urine for independent testing.
5. If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated.
6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.
7. You have no legal right to have an attorney, physician or anyone else present for the purpose of taking the breath samples. You have no legal right to refuse to give, or delay giving, samples of your breath.
8. Any response from you that is ambiguous or conditional, in any respect, to my request that you provide breath samples, will be treated as a refusal to submit to breath testing. Even if you agree to take the test, but then do not follow my instructions, do not properly perform the test, or do not provide sufficient breath samples, I will charge you with refusal to submit to breath testing.
9. I repeat, the law requires you to submit samples of your breath for testing. Will you submit the samples of your breath?

In order to fulfill the requirements of the law, the officer must record the subject’s answer on the form.

If the arrested person does not respond, or gives any ambiguous or conditional answer short of an unequivocal “yes,” the police officer must read the following:

Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than “yes,” I will charge you with refusal. Now, I ask you again, will you submit to breath testing?

In order to fulfill his legal duties, the officer must record the subject’s answer on the form.

Parting Shot

Fortunately, we live in a day and age with easy access to information. Unfortunately, caveat emptor applies to information consumption. New Jersey law directly contradicts the infographic I stumbled upon today. As an officer of the court, I cannot suggest anyone in New Jersey refuse to submit to a breath test. But if the police charge you, New Jersey Breath Test Refusal Lawyer Michael Smolensky, Esquire, knows how to protect his clients. A charge of Refusal to Submit to Breath Test calls for an aggressive defense, and Mr. Smolensky can provide consultations for all such cases. Call Now—(856) 812-0321.

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Footnotes

¹ N.J.S.A. 39:4-50.2.
² N.J.S.A. 39:4-50.2(a).
³ N.J.S.A. 39:4-50.2(d).
⁴ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
⁵ N.J.S.A. 39:4-50.2(b).
⁶ N.J.S.A. 39:4-50.2(c).