Form 166: Defenses to Refusal in Dwi Case

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

Form 166: Defenses to Refusal in DWI Case

Defenses to Refusal in a DWI Case to Completely Provide Two Breath Samples in Excess of 1.5 Liters By Kenneth Vercammen, Esq. of Edison, NJ

The penalty for Refusal is a 7-month driver's license suspension, high fines and a $3000 surcharge, plus 9 car insurance eligibility points. Refusal tickets are typically written based on either outright refusal to take a breath test or failure to provide two samples of more than 1.5 liters. The purpose of the Refusal to take breath statute is to encourage all suspected drunk drivers to take the breathalyzer test." State v. Widmaier 157 N.J. 475, 487 (1999); State v. Wright 107 N.J. 488, 504 (1987). This is because "no chemical test ... may be made or taken forcibly and against physical resistance thereto by the defendant." N.J.S. 39:4-50.2(e).

The Refusal statute provides that a driver 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 [N.J.S. 39:4-50]. N.J.S. 39:4-50.4a(a).

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). The elements the state must prove are whether a driver 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 were made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a). There are often defenses based on errors by the testing officer in the attempt to obtain a sample.

The Refusal 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 his rights N.J.S. 39:4-50.2(d) of the following:

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. N.J.S. 39:4-50.2(b). This is called Paragraph 36. Failure to read the correct standard statement completely may be a defense to refusal.

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. N.J.S...