Are People Generally Confused When Asked To Take A Breath Test?
Some people are genuinely confused when asked to take a breath test by a police officer. Others are confused because they are inebriated, which is not part of a confusion defense. The confusion defense is a very narrow concept that maybe gives rise to a dismissal of the refusal in certain circumstances. However, most people do generally submit to the breath sample test, though Attorney John Menzel is seeing the number of refusals go up.
When Attorney Menzel has someone coming into his office, he prefers they do not have a refusal charge but would rather focus on neutralizing observational evidence. The ideal approach is to try to undermine the breath test and try to win the case outright as opposed to debating whether or not to take the DWI or the refusal to minimize the consequences. Attorney Menzel prefers to go in for the win versus going in for damage control.
Can Someone Change Their Mind And Submit To A Breath Test After Initially Refusing?
Police officers are required to ask persons if they are willing to submit to the breath test twice. If the individual persists in saying, “No” after being asked that second time, the law currently says it is entirely up to the discretion of the officers whether someone can change his or her mind later on and agree to submit to the test.
Additional Information On DWI Refusals In New Jersey
Attorney John Menzel emphasizes that when someone encounters a police officer, the law really requires an individual to do only do five things that are common sense. 1) Pull over when signaled by police; 2) Provide your driving credentials if requested; 3) Get out of the vehicle if ordered by police to do so; 4) Submit peacefully to an arrest and 5) Blow into the breath sample machine if it is requested by law enforcement.
The law does not require anyone to stand on one leg, stand heel to toe, walk heel to toe, etc.
No one should submit to those exercises. If an officer asks whether or not the individual has had anything to drink that day, Attorney Menzel’s advice is to remain silent.
At that point, the person should say, “Officer, I want to call my lawyer.”
It boils down to two words: silence and attorney. Those words are the crystallization of anyone’s constitutional right. They are the only real defense anyone has in that situation and that is the right to remain silent and the right to request an attorney. The police most likely will keep peppering the individual with questions or ignoring requests for an attorney, but those rights will come back and help that person at a time when he or she needs them the most; in court.
Silence and attorney.
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