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Defenses to Refusal in a DWI Case to Completely Provide 2 Breath Samples in Excess of 1.5 Liters

Defenses to Refusal in a DWI case to completely provide 2 breath samples in excess of 1.5 liters

By Kenneth Vercammen, Esq. of Edison, NJ

The penalty for Refusal is a 7-month driver’s license suspension, high fines and a $3000 surcharge, plus 9 car insurance eligibility points. Refusal tickets are typically written based on either outright refusal to take a breath test or failure to provide two samples of more than 1.5 liters.  The purpose of the Refusal to take breath statute is to encourage all suspected drunk drivers to take the breathalyzer test." State v. Widmaier 157 N.J. 475, 487 (1999); State v. Wright 107 N.J. 488, 504 (1987). This is because “no chemical test ... may be made or taken forcibly and against physical resistance thereto by the defendant.” N.J.S. 39:4-50.2(e).

The Refusal statute provides that a driver shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of [N.J.S. 39:4-50]. N.J.S. 39:4-50.4a(a).

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 the state must prove are whether a driver 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 were made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a).  There are often defenses based on errors by the testing officer in the attempt to obtain a sample.

The Refusal Act requires, “A standard statement, prepared by the director, shall be read by the police officer to the person under arrest. N.J.S. 39:4-50.2(e).  This statement, by statute, mandates that the police officer shall inform the person tested of his rights N.J.S. 39:4-50.2(d)  of the following:

A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested. N.J.S. 39:4-50.2(b).  This is called Paragraph 36.  Failure to read the correct standard statement completely may be a defense to refusal.

In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection. N.J.S. 39:4-50.2(c).

Furthermore, the police officer shall ... inform the person arrested of the consequences of refusing to submit to such test in accordance with [N.J.S. 39:4-50.4a]. N.J.S. 39:4-50.2(e).  Sometimes a driver is confused by the Miranda warnings and the conflicting DWI Paragraph 36.  Our Supreme Court has recognized 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).     

The Alcotest operator must follow specific machine instructions.

The NJ Supreme Court in State v. Chun 194 N.J. 118 (2008) wrote: The operator then attaches a new, disposable mouthpiece and removes cell phones and portable electronic devices from the testing area. The operator is required to read the following instruction to the test subject: “I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?” Chun at 80-81.  If the operator fails to follow these instructions, the attorney should argue that the defendant is not guilty of refusal. 

The Supreme Court in Chun also recognized that a refusal ticket does not always need to be written: Footnote 14- Even if the officer types in the code for a refusal on the Alcotest, he is not required to issue a summons for refusal. Instead, the officer may opt to start the test again and give the arrestee eleven more attempts. Alternatively, the officer may decide to terminate testing, without charging the test subject with refusal. An operator will generally select this option if he or she concludes that the subject has in fact attempted to comply but is not capable of providing a sample that meets the minimum test criteria.  Chun at 81-82.

The Alcotest requires 1.5 liters of air.  The original Law Division case of State v. Foley 370 N.J. Super. (Law Div. 2003) held a refusal should not be charged if the subject gives at least .05 liters of air.

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person’s mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person’s mouth, the operator is required to begin counting the twenty-minute period anew.  Chun at 79.  The operator must testify they complied with this section of the decision.

The Chun Court also wrote that the results of the test sequence are printed out from the device in a sequentially numbered document referred to as an AIR. The AIR contains the test subject’s identifying information, date, time, and test results for each stage of the procedure. Each AIR includes a variety of other information relevant to the test, including the serial number of the device used in the test, dates of and file numbers for calibration and linearity checks, and solution control lot and bottle numbers. The operator must retain a copy of the AIR and give a copy to the arrestee. Chun at 82.  Defense counsel will argue failure to give the driver a copy of the AIR the same night is a defense to refusal and DWI.

His role [the operator] now consists of observing the subject to ensure that twenty minutes has passed and to be certain that the subject has neither swallowed nor regurgitated any substances during that time that would influence the test results; inputting and verifying the accuracy of the identifying information needed to start the sequence; changing the control solution if the machine alerts him to do so; attaching a new mouthpiece; reading the instructions about how to blow into the machine; observing the LED screen and following its prompts; and observing the subject to ensure that he or she actually provides a sample.  Chun at 140.  Defense counsel can argue failure of the operator to fulfill these duties creates reasonable doubt.

The Report and Recommendations and the Supplemental Report and Recommendations of the Special Master Judge Michael Patrick King were adopted as modified. Chun 194 NJ at 149.  The Chun court adopted most of the findings by Special Master King: 

The Special Master Report states:   At Brettells request, the revised firmware also addressed the high refusal rate in Foley by displaying error messages on the screen so that operators could take them into consideration (33T96).  The State also changed its training protocol to teach operators to instruct subjects to blow deep breaths (33T96).  The new instruction stemmed from the assumption that breath at the end of a deep exhalation accurately reflected alveolar or deep-lung air (39T66).  Additionally, Brettell requested changes in the AIR including the presentation of all information on one page, whenever possible, and the inclusion of error messages (33T103;34T71).

Special Master Report at page 81

NJ Judiciary Website:                                                                                  


On Page 110, Judge King analyzed the duties of the Alcotest operator:

Additionally, the ADTU instructs operators to change the mouthpiece after each breath sample and read specific blowing instructions to the subject (52T70;52T80).  The class provides each officer with a sheet of the instructions, which also are included in the manual and posted on the wall near the instrument at each police department (52T75).  The instructions read:  "I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath.  Continue to blow until I tell you to stop.  Do you understand these instructions?" (52T75) Special Master Report at page 114.  Defense counsel will argue failure by the operator to fully read the instructions are grounds for refusal.

After the operator performs the initial data entry, the LED screen displays a message to "please blow/R" (52T72).  The operator has three minutes to read the blowing instructions, insert the mouthpiece, and collect a breath sample or the instrument will display the error message "ready to blow expired" (52T73).  If the error message appears, the operator must select one of three prompts: (1) terminate; (2) refused; or (3) continue (52T73).  Special Master Report at page 114.

When an operator pushes button three, the instrument purges itself and again prompts "please blow/R" and the process repeats (52T73).  If the operator pushes the refusal button and then decides to continue the test, he will get the same three choices and can hit the number three button and continue with the process (60T10).    The Alcotest 7110 allows the operator eleven attempts at collecting two valid breath samples (52T74).  After the eleventh attempt, the instrument gives only two options:  (1) terminate; and (2) refused (52T82).  At that point, the operator does not necessarily have to charge refusal (52T90).  Judge King Special Master Report at page 114.

For example, if a subject has made several unsuccessful attempts, the operator can choose to terminate the test and give an opinion that the subject was not capable of providing a proper sample (52T91- 52T93).  A refusal therefore should not automatically be charged every time a driver Is unable to give a 1.5 liter sample of air.

According to Judge King at page 116:

If a testing sequence is terminated or aborted, the ADTU instructs the operators to retain the documents (52T96).  Flanagan emphatically stated that "[everything is sequentially numbered.  We dont destroy anything, whether its good or bad.  We save everything.  They are not to destroy any documents" (52T96).  Upon completion of a test, the ADTU recommends that the operator give a copy of the AIR to the subject (57T71- 57T72).  Special Master Report at 116-117.

The operator manual lists all of the possible error functions with their possible causes and remedies (52T99;D-15 at 24). ).  Special Master Report at 117  Such messages include:  20. READY TO BLOW EXPIRED [where three- minute period to collect sample expires].

  If the error message appears, the operator must select one of three prompts: (1) terminate; (2) refused; or (3) continue; when an operator pushes button three, the instrument purges itself and again prompts “please blow/R” and the process repeats. [SMR114, 52T73.]

       The Alcotest 7110 allows the operator 11 attempts at collecting two valid breath samples.  [SMR114, 52T74.]  After the eleventh attempt, the instrument gives only two options: (1) terminate; and (2)refused, [SMR114, 52T82.]although the operator does not necessarily have to charge refusal. [SMR114, 52T90.] If the operator wants to allow a subject more than 11 attempts, he can simply restart the process.  [SMR115, 52T81-82. ]A subject may observe the LED screen at the operators discretion.  [SMR115, 57T93-95.]

"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.                                                               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.

About the Author

Kenneth A. Vercammen is a trial attorney in Edison,  Middlesex County, New Jersey.  He has lectured on traffic and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving.   He has published 55 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters.  Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings,  Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton, PA.



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