Breathalyzer Refusal Warning May be Changed in NJ

NJ Refusal Conviction Reversed Based on Inaccurate Refusal Warning Used by Officer

In 2012, the NJ Superior Court, Appellate Division, in Morris County heard a defendant’s appeal of his conviction for refusal to submit to a breathalyzer, based on a traffic stop in November 2009 in State v. O’Driscoll.  Defendant’s legal basis for his appeal on that issue was supported by the argument that the arresting officer did not read the valid standard warning statement to the defendant when he was being asked to submit to a breathalyzer.  N.J.S.A. 39:4-50.2(e) (the “Implied Consent Law”) is the statute that requires a police officer to inform a person arrested of the consequences of refusing to submit to such a test and specifically provides that:

“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.”

In State v. O’Driscoll, the arresting officer read to the defendant an expired statement which stated that, if convicted of refusal, he would face a license suspension of between six months and twenty years and fines of between $250 and $1,000.  However, this statement was amended in April 2004 to reflect a loss of license for between seven months and twenty years and fines of between $300 and $2,000.  According to the Superior Court, this inaccuracy did not delineate the accurate penalties the defendant faced, defeating one of the essential elements required for a refusal conviction.

NJ State Bar Association Challenges Current Refusal Warning

State v. O’Driscoll is now being heard by the NJ Supreme Court, and may have extensive effects on thousands of New Jersey refusal convictions.  The State Bar Association is challenging the current refusal warning, as issued by the Attorney General’s Office on July 1, based on the argument that it fails to notify potential refusers that they face mandatory license suspension, fines, installation of an ignition interlock device and attendance at an Intoxicated Driver Resource Center (IDRC).

Call an Experienced NJ Refusal Lawyer

The penalties for a refusal are severe, imposing most penalties the driver would face had he or she submitted to the breathalyzer and blew a reading of above .15% BAC.  If you have been charged with a DWI, DUI or refusal in Ocean County or Monmouth County, New Jersey, call the Point Pleasant Beach law firm of Villani & DeLuca, P.C.  The firm’s experienced DWI, DUI and refusal lawyers will provide you with a free consultation about your charge and help you understand your rights and options to fight your DWI or refusal in court.  Call 732-965-3350 today to schedule your free initial consultation.

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