New Jersey’s Bar Association Recommends Change to State’s Breath Test Refusal Statement

For those who follow New Jersey drunken driving law, there was an interesting article earlier this year reporting the state’s Bar Associate desire to effect a change in the statement used when advising motorists of the penalty for refusing a breath test associate with a drunken driving arrest. Based on the news reports we ran across, this apparently grew out of the drunken driving case of Assemblyman Paul Moriarty last year.

As New Jersey DWI defense attorneys, we know full well how many motorists are caught up in drunk driving arrests each year. Many of these people may not have known that they were legally drink at the time of the arrest, while others believe wholeheartedly that the charges against them are without grounds. Whatever the situation, our job as qualified drunken driving defense lawyers is to represent these individuals in a court of law and help them fight the accusations leveled against them.

For some drivers, being accused of driving while intoxicated can mean they will be asked to take a breathalyzer test to measure their blood-alcohol concentration — the legal limit for which is 0.08 percent here in the Garden State. Some people do not want to have their breath analyzed and so they have the choice to refuse to have a sample taken. But this is not such a simple issue as it may seem.

Anyone who is licensed to operate a car, truck or motorcycle in New Jersey essentially agrees to be subjected to a breath test under New Jersey’s “Consent Law.” Failure by an accused drunk driver to provide a breath sample when requested by police can result in punishment under N.J.S.A. 39:4-50.4, also known as the New Jersey Refusal Law. But there could be some changes regarding the statement that police must give accused motorists who refuse a breathalyzer test.

This is because the New Jersey Bar Association has asked for a revision to that statement, which will be reviewed by the state Supreme Court. The outcome of that decision could impact not only future DWI cases in the Garden State, but also those pending, such as the contested July 31 arrest of Assemblyman Paul Moriarty. In that particular case, the defendant claimed he refused the breath test because he felt as if he was being falsely accused and did not trust the test.

According to new articles, the case to be heard by the state Supreme Court is known as State v. O’Driscoll, which grew out of a 2009 drunken driving arrest involving a Harding Township man who was not read the latest version of the breath test refusal “standard statement.” In that case, the Morris County Superior Court overturned O’Driscoll’s conviction for refusing the breathalyzer test. County prosecutors have appealed to the Supreme Court.

But the New Jersey State Bar Association is arguing that even the most updated version of the statement, which was revised back in July 2012, does not sufficiently inform accused drunk drivers regarding all of the penalties for not taking a breathalyzer test, specifically the “minimum” mandatory penalties.

In its friend of the court brief, the bar association has stated its perspective on case and is urging a change in the standard statement. In short, the bar has stated, “While it was expected that the new form would quell the controversy, it actually causes as much, or more, controversy than it quelled. It’s an abbreviated form compared to its predecessors… In its abbreviation, however, the form misstates the refusal penalties, ignoring that there are certain mandatory penalties for refusal. The language in the new form leads any subject to conclude (even a sober one) that the court will have discretion to impose no mandatory minimum penalties.”

Many attorneys would likely agree that the bar association is correct in pointing out the flaws in the “standard statement.” Essentially, the brief as presented to the high court is saying that if you have a standard statement regarding penalties for refusing a breath test, then in making any updates or changes to the document the state must be certain that provides a full and accurate description of the penalties as provided for in the legal statutes.

NJ Bar Association wants drivers’ breath test refusal statement changed, NJ.com, January 10, 2013