Form 103: Brief in Support of Motion to Dismiss Refusal

• Library: Criminal Law Forms (ABA) (2013 Ed.)

Form 103: Brief in Support of Motion to Dismiss Refusal

KENNETH VERCAMMEN
&ASSOCIATES, PC
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
Attorney for Defendant d1

State v

MUNICIPAL COURT

Piscataway

DOCKET NO.

Brief in Support of Motion to Dismiss Refusal

Legal Argument:

I. The Issue Presented Is One of Fundamental Fairness: Whether the State Must Convey Information to a Breath Testing Subject in a Way that is Meaningful and Understandable to that Subject

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 His Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt

III. Evidence That Defendant Did Not Understand the Standard Statement Required to Be Read to Him Was Palpable, Raising Reasonable Doubt About the Sufficiency of the Evidence Needed to Convict Him

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 he understood a standard statement that was read to him?

The plain language of the statute requires not merely reading certain information in English to the arrested person. Rather, that person must be informed — i.e., information must be conveyed in a meaningful way — so that the person can make a knowing intelligent choice about submitting breath samples. Our Supreme Court so recognized with its discussion 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)

FACTS

The defendant, who did not graduate from high school, stated he did not understand what was being said to him. His family was born in another country and English is not his first language. The AIR indicates there were two...