DWI Breath Test Refusal Statement Could Be Changed At Request Of New Jersey Bar

The New Jersey breathtest refusal statute has been subject to evolving case law by the New Jersey Supreme Court and Appellate Division of Superior Court. A New Jersey Appellate Court, found a driver not guilty of refusal under N.J.S.A. 39:4-50.4a because the officer did not advise the driver of the correct penalties for a refusal. The recent case is State v. O’Driscoll, A-4341-10T2 N.J. Super (2012), and was decided by the Appellate Division on March 1, 2012. There is a defense to a refusal ticket if the police officer fails to properly advise a driver of the correct penalties for refusing a Breath Test. The officer must advise the driver of a mandatory seven month loss of license and ignition interlock requirement for a refusal charge. Prior to July 1, 2012, most police departments in New Jersey were using a “standard statement” which did not advise drivers of the ignition interlock requirement if convicted of refusal and as a result Mr. O’Driscoll’s conviction was overturned by a Morris County Superior Court. However, his case is now heading to the Supreme Court the New Jersey as prosecutors appeal that ruling.

The New Jersey State Bar Association filed a brief amicus curiae and is arguing that even the now updated version of the statement does not sufficiently advise an alleged drunk driver of the mandatory penalties for a refusal. They state that the form misstates the refusal penalties and leads an alleged drunk driver to believe that the court will have the discretion to impose no mandatory minimum penalties when there are, in fact, mandatory minimum sentences for refusal. Those mandatory minimum penalties which are not discretionary include loss of license for a minimum of seven months; a fine of no less than $300 and no more than $2,000; installation of an interlock devise for the full time of suspension plus a minimum six months to three years after the suspension and a minimum of 12 to 48 hours in an IDRC program. The bar association is simply pointing out the flaws in the “standard statement” which could impact the high profile case of Gloucester County Assemblyman Paul Moriarty of who is currently contesting a DWI Refusal Charge as a result of being read the “standard statement” as revised on July 1, 2013 which did not clarify the minimum sentences and whose attorney has argued that the issue could be raised in Mr. Moriarty’s case to defeat the refusal charge.