New Jersey DWI Attorney John Menzel

What Are The Basic Elements Of A Viable Refusal Case?


The elements of a refusal are fairly well laid out in NJSA 39:4-50.4a. The first element is that the officer must have probable cause to arrest someone for DWI. The second element is that the officer must have informed the person of their rights and obligations to provide a breath sample, and that’s usually done by virtue of a document called the Standard Statement. It currently consists of nine short paragraphs concluding with the question, “Now will you submit the samples of your breath?”

This Standard Statement explains why the person has been arrested, what the penalties would be at should they decide not to submit samples and also explains that the individual does not have a right to consult with an attorney or anyone else in connection with providing the breath samples.

The next element depends on whether the person says something other than, “Yes,” and gives something other than an affirmed response. For example, if someone remains silent and doesn’t give any indication one way or the other, the officer can treat that as a refusal. If the individual says “No”, then, of course, that is a direct refusal. If the person asks to see a lawyer or consult with anyone, that is also considered a refusal. If the refusal is triggered by a statement such as any mentioned above, then the officer has to read a very short second statement. This statement basically tells the person that their answer was unacceptable and that once again they were asked to submit a breath sample. If the individual persists in refusing by continuing to ask questions or asking for a lawyer or not responding, the officer will then charge that as a refusal.

What Is The Standard Timeframe For Conducting A Breath Test?

There is no definitive time period within which breath samples must be obtained. In New Jersey, the case on of the State versus Tischio, says that breath samples should be taken within a reasonable amount of time from either when a person operated their motor vehicle or within a reasonable amount of time of an arrest for DWI. The case is a little ambiguous on which is being referred to because they can be different. However, usually it is directed at a test being taken within a reasonable time of driving. Otherwise, the breath test result really won’t have any rational relationship to a degree of impairment at the time of driving.

As a general rule of thumb, any sample taken within two hours is usually considered reasonable. It takes time to transport someone from the scene of the arrest. An officer then is required to actually watch the person for 20 minutes continuously before they submit the breath samples to rule out any contamination from mouth alcohol. If there’s any burping or belching, that 20 minute time period has to begin again. Therefore, the issue becomes what is reasonable? If a person is giving the officer a hard time, for example, a longer delay may be tolerated by the courts and considered reasonable.

If a person is cooperative but for other reasons there is a delay in the acquisition of the breath sample, that might be deemed to be unreasonable. What is starting to become common is that many of the Alcotest instruments are breaking down or declaring errors in the acquisition of breath samples so that the samples are invalid and the people have to be tested on another instrument or taken to another department.

In some cases there will be fact patterns where it might take three or even four hours to get a breath sample all because these machines are breaking down and the individuals have to be moved from police departments. At some point the courts might say that those delays are unreasonable and therefore they cannot be treated as refusals.

For more information on Viability Of A Refusal Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 394-1394 today.

John Menzel, J.D.

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