What Does Implied Consent Mean Under New Jersey Law?
Under New Jersey law, implied consent means that as part of having the privilege to drive, every person with a driver’s license consents to providing breath samples at the request of a police officer; provided that officer has probable cause to believe the individual has been driving while under the influence.
What If Someone Remains Silent When The Officer Asks For A Breath Test?
An officer is permitted to take silence as a refusal and that causes confusion for many people. Under the Fifth Amendment, everyone has a right to remain silent and not answer a police officer’s questions. What the Fifth Amendment is really targeted to is what is called testimonial evidence, or answers to questions that elicit information. Those questions can include “Have you had anything to drink tonight?”, and, “Did you drive here? Have you had anything to drink since you got here?”
Those are all questions that are eliciting information about one’s conduct, about things that he or she did. That is different from questions that ask someone to provide a breath sample. Therefore, to reiterate, if someone chooses to remain silent without giving any indication that he or she will submit to breath samples under New Jersey law, can be interpreted as a refusal by a police officer.
What Is Considered To Be A Refusal By The Police?
In New Jersey, the concept of a refusal applies only to breath testing. Throughout the country, that’s true now by virtue of a case called Birchfield versus North Dakota. Under that case, the United States Supreme Court discussed how far the Fourth Amendment to protecting people who were asked to submit breath tests or blood tests should go. The Court held that a breath was not so invasive or intrusive as to require an officer to get a warrant.
By the same token, they held that asking someone for a blood sample was intrusive because it required sticking a needle in a person’s arm and therefore was subject to the Fourth Amendment. In that case an officer would have to get a warrant in order to get a blood test.
The current laws now throughout all, if not most, of the country are that officers can get a breath sample without any warrant or other requirement other than having probable cause. If they request a blood sample, individuals do have a constitutional right to refuse, unless of course the officer, goes through the trouble of obtaining a warrant.
In between the two, there are also requests for urine samples. However, a request for urine is probably not as intrusive as a request for a blood sample, though it is a bit more intrusive than a request for a breath sample. Attorney Menzel’s feeling is that the U.S. Supreme Court will probably implement a warrant requirement for officers to request urine as well as blood. That really remains to be seen. In New Jersey, a case called the State versus Verpent where the state supreme court said that urine testing would be subject to a warrant absent an exception to the warrant requirement.
That case was decided a few months ago with a remand to the trial court for the purpose of making a record, to determine whether they were justified in requesting a urine sample and whether the circumstances were such that the police would be excused from obtaining a warrant. The outcomes of that case is still unknown.
How Many Breath Samples Does A Person Have To Provide If They Consent To A Breath Test?
A person requested to give a breath sample will generally be required to provide at least two samples. In New Jersey, they need a second sample to essentially validate the first. Those two samples have to be within a certain precision tolerance of each other. That precision tolerance is either plus or minus 0.05 or 5%, whichever is greater. At a 1.0 or less, it’s plus or minus 0.005. Above a 0.10, it’s plus or minus 5%. As you can see, the numbers are tolerated, get a little bit bigger. That precision tolerance gets a little bit wider the higher the reading.
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