New Jersey DWI Attorney John Menzel

What Are The Potential Defenses In A Refusal Case?


In New Jersey, if an officer asks a person to submit a breath sample, he or she should submit to the test. It is much easier to try the breath test results than it is to deal with the very difficult decisions that come with a refusal. It’s not uncommon with a DWI refusal that the defendant faces a pick your poison situation; that is a prosecutor may be willing to drop the refusal if the person pleads to the DWI or they may drop the DWI if the person pleads to the refusal. Remember, in New Jersey plea bargaining is prohibited for first offenders.

That said, the prosecutor is always free to amend, downgrade or even dismiss a charge if he can establish the reason for doing so. There might be some weakness in the evidence that would justify them dropping from one charge to another. Most commonly, it is easiest for the prosecutor to say, “We can’t prove the DWI charge because without an objective breath sample or blood test result, we can’t be sure the person was under the influence.”

Under those circumstances, a first offender will get a seven month revocation followed by six to 12 months of having an ignition interlock device installed in his vehicle versus a three month revocation and no interlock if they were convicted of just a DWI. In the case of second or subsequent offenders, that agreement is to plead guilty to the DWI and they will drop the refusal now.

On occasion, prosecutors will go the other way if they are willing to acknowledge that observational proofs are weak. That’s something that’s dealt with on a case-by-case basis. Refusal pleas are very common because the elements are generally pretty easy for the State to prove.

There are a couple of defenses that can be used in these cases which are referred to affirmative defenses. Basically an affirmative defense is if the state has to prove the elements and if they can present enough evidence to do so and establish those elements, they have what’s called a prima facie case. That means without anything else, they would get a conviction. At that point, while the burden is ordinarily entirely on the state, at the point where they have a prima facie case, the burden shifts to the defendant.

The defendant can then mount what’s called an affirmative defense, meaning the defendant comes forward with evidence to either explain or negate one of the elements that has been proven. In New Jersey, two common defenses to refusals would be a physical inability to provide a breath sample and another would be confusion, meaning that a person is confused about their constitutional rights. Some people think because they have a right to remain silent and not provide testimonial evidence that means they don’t have to provide any evidence. Unfortunately, that is not how the Constitution works.

A person must provide tangible physical evidence and breath samples falls into that category. That’s why a person does not have a right to refuse to give a breath sample. That is distinguished from testimonial evidence which refers to answers to questions that are intended to elicit information. In a case called State versus Chun, the Supreme Court addressed the physical inability, to a certain degree, for someone to be unable to provide a breath sample. The Supreme Court in Chun made a distinction between women over the age of 60 and the rest of the population. As a general rule, for an Alcotest sample to be valid, the defendant has to submit a sample that is 1.5 liters in size. The court held that for women over the age of 60, it should be 1.2 liters because women are generally smaller and have less lung capacity.

The question becomes is the defendant in a particular case the equivalent of that 60 year old woman? There be a male who suffers from congestive heart failure who has emphysema, for example. While generally speaking, the machine would accept the 1.5 liter sample, this person is just not may not blow enough to satisfy the machine, however, it might be enough to show that he is making a good faith attempt which could constitute a defense to the breath test refusal. Again, the burden of establishing that defense is on the defendant.

The same thing applies with regards to the confusion defense. This defense may require the defendant to testify because confusion refers to thoughts in someone’s head. Nobody can read anybody’s mind. The only way of knowing the thoughts in somebody’s head is by looking at their behavior or hearing their explanation. Since the only person who can really provide that explanation is the defendant, that person will have to take the stand. Meaning he or she will be subject to cross-examination and that opens up the possibility that he or she may say something damaging. That makes a confusion defense very risky. The other issue with this defense is that it does require the judge to believe the person was confused and that can be difficult.

There is some institutional pressure to convict DWI cases even though supposedly the state has to prove the case beyond a reasonable doubt. One of the big things that separate judges from jury is that while the judge may, at an unspoken or subconscious level, be concerned about criticism or reappointment, juries are not. They come in and they do their job. While they may have the same biases and prejudices that most judges have, they don’t have the additional overlay of looking for reappointment. Most jurors want to get done with their job, be done with it and forget about it. Unfortunately New Jersey doesn’t have juries. It really comes into play when dealing with confusion defenses on refusals.

For more information on Potential Defenses In 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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