Confusion as defense to refusal to take breath test NJ

Confusion as defense to refusal to take breath test NJ

I.       The Issue Presented Is One of Fundamental Fairness: Whether the State Conveyed Information to a Breath Testing Subject in a Way that is Meaningful and Understandable to that Subject  who suffers from ADHD

 II Modern Notions of Due Process and Fair Play Dictate that a Confused Arrestee Should Be Informed of details penalties for refusal Before a Court Can Consider the Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt

III. Evidence That Defendant Did Not Understand the Standard Statement Required to Be Read to  the driver Was Palpable, Raising Reasonable Doubt About the Sufficiency of the Evidence Needed to Convict Her

                                  LEGAL ARGUMENT:

         The question presented on this court is this:  Can the State convict a defendant of refusing to submit breath samples if the proofs fail to establish beyond a reasonable doubt that the driver understood a standard statement that was read to  the driver who suffers from ADHD?

      The plain language of the statute requires not merely reading certain information in English to the arrested person.  Rather, that person must be informed -- i.e., information must be conveyed in a meaningful way -- so that the person can make a knowing intelligent choice about submitting breath samples.  Our Supreme Court so recognized with its recognition of the confusion doctrine in State v. Leavitt 107 N.J. 534, 542 (1987) Confusion was also acknowledged as a defense to refusal in DMV v Schaltz 4 NJAR 61 (1980)                                                

         Medicaid records have been served on the state as reciprocal discovery.

         Thus, the municipal court must determine, and the State must prove, whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer....”  The State must prove these elements beyond a reasonable doubt. State v. Cummings, 184 N.J. 84 (2005).

         The elements at issue in this case are whether he refused to submit to the test upon request of the officer..., N.J.S. 39:4-50.4a(a). and whether the taking of samples [was] made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a).

        

“Zealousness in ridding our roads of drunk drivers cannot overcome our ordinary notions of fairness to those accused of these offenses. State v. Chun, 194 N.J. 118 (2008)  and from time to time, courts must re-examine much of our earlier jurisprudence as part of our consideration of the issues raised in this appeal. Id. at 74

         II  Modern Notions of Due Process and Fair Play Dictate that a Confused Arrestee Should Be Informed of penalties for refusal Before a Court Can Consider the Failure to Submit Breath Samples as Proof of Refusal Beyond a Reasonable Doubt

       The NJ Supreme Court recently held in State v. Marquez 202 NJ 485 (2010)  that the refusal warning should be worded so a driver understands the penalties for refusal.

       In the Marquez case involving a conviction for refusing to submit to a chemical breath test, the Court held that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so.  The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands.  Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

         Refusal penalties are significant.  In contrast with the earlier penalties, a first-time offender who today is convicted of refusing to submit to a breathalyzer test after being arrested for driving while intoxicated faces a suspension of the driving privileges for a minimum of seven months to a maximum of twelve months, a fine of not less than $500, and mandatory confinement of twelve to forty-eight hours at an Intoxicated Driver Resource Center.  ***  Those penalties increase for repeat offenders as well as for those offenses committed on or within 1,000 feet of school property or while driving through a school crossing.  Those convicted must also pay thousands of dollars in surcharges to the State.

         Based on the seriousness of the consequences of a refusal conviction, our Supreme Court in recent years has redefined the offense from civil to quasi-criminal in character.  For example, the Supreme Court held that double jeopardy principles barred retrial of a refusal acquittal even though the facts would otherwise support conviction. State v. Cummings, supra at 92-93 (internal citations omitted). Also, the Court elevated the burden of proof required for conviction from preponderance of the evidence to proof beyond a reasonable doubt, State v. Widmaier, supra.   despite the plain language of the statute. Ordinary notions of due process and fair play, especially within a statutory scheme that contemplates reading a standard statement to convey information to an arrestee, militates against the creation of a conclusive presumption that a mere reading of a standard statement in a way that is unintelligible to particular defendant constitutes proof of an element of the offense beyond a reasonable doubt.

         III. Evidence That Defendant Did Not Understand the Standard Statement Required to Be Read to the driver was Palpable, Raising Reasonable Doubt About the Sufficiency of the Evidence Needed to Convict the driver

         The defendant was obviously confused by the conflicting Miranda warnings, then Paragraph 36

         This Court should, therefore, acquit the driver of the charge under N.J.S. 39:4-50.4a.

                                                   CONCLUSION

In this case, we are dealing with proof of an element of an offense beyond a reasonable doubt. Accepting the reading of a standard statement in a language unintelligible to the person who is the object of the information our law requires to be conveyed is not only callous, but also offensive to ordinary notions of due process and fair play.