FAILURE TO PROVIDE PROPER BREATH SAMPLE IS A REFUSAL UNDER NJ DWI LAW N.J.S.A. 39:4-50.2.

State of New Jersey v. Aaron P. Schmidt (A-35-10)
Argued March 28, 2011 — Decided May 26, 2011
RIVERA-SOTO, J., writing for the Court, opined:

Defendant/NJ Motorist was stopped by police and brought to New Jersey Police headquarters to take breath test to determine if motorist was under the influence of alcohol. At the station, the officer read his Miranda warnings and “the standard statement for operatorsof a motor vehicle.” The Standard Statement explains, among other things, that the law requires that the defendant provide the required breath samples and that if he refuses, he will be issued a separate summons for the refusal. The statement further provides that any ambiguous or conditional response also will be treated as a refusal. In addition, the statement provides that, if a defendant “remains silent; or states, or otherwise indicates, that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person; or if the response is ambiguous or conditional, in any respect whatsoever,” the police officer administering the test shall read an additional statement.

After defendant consented to provide the required breath samples – thereby obviating the need to read the Additional Statement – Patrolman Carson of the Logan Township Police Department “instructed the defendant to take a deep breath and blow into the mouth piece with one long continuous breath. Apparantly, the defendant did not follow the officer’s instructions because the Alcotest indicated not of sufficient length and/or volume to generate a valid reading on the testing apparatus. The officer again instructed defendant and advised him that if he “did not give a long continuous breath [, it] would be considered a refusal.” When defendant again failed to do that, he was charged with refusal to give a breath sample, in violation of N.J.S.A. 39:4-50.2.

The Court held, Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, defendant remained among those who have consented and, hence, was not entitled to reading of the Additional Statement. As such, the New Jersey Motorist/Defendant was found guilty of refusing to provide breath test.

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