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Where You Are Driving Can Be Key to Defeating a NJ DWI or Refusal Cases

As I have posted in the past, refusing to give two breath samples after being arrested for drunk driving can have serious consequences.  This is because the consequences are the same as for DUI!

Did you know that where you are driving can make a difference in whether you can be compelled to give a breath sample if you are stopped in NJ for drunk driving?  This is because under New Jersey law a driver is deemed to have consented to providing said samples if he or she operates a motor vehicle on a public road, street, highway or quasi-public area of the State, providing that the police have probable cause.   Thus where you are driving your vehicle can become very important in a drunk driving or refusal charge. But what is a "public road, street, highway or quasi-public area"?

The New Jersey Appellate Court has ruled, in State v. Bertrand, that a private parking garage with sufficient room for 300 spaces constituted a quasi-public area sufficient to trigger the requirement that the intoxicated defendant (who was a trespasser there) submit to providing samples of his breath.  Although this does help in defining the language of a particular statute, the ultimate outcome also provides an ironic lesson.

In that case, the Defendant was found passed out on a bench in the garage a distance from his vehicle, which had car keys in the ignition.  He was belligerent with the police officers, showing clear signs of intoxication, so he was asked to submit to a field sobriety test.  He refused to without consulting with an attorney first.  He was then arrested and asked to submit breath samples; he refused.  As a result, he was charged with both drunk driving and refusal to submit to a breathalyzer test.

Because the state could not prove he was operating the vehicle while intoxicated, the court dismissed the charge.  However, he was ultimately convicted on the refusal.  If he had simply given the breath sample, he would have been cleared!  Instead, he must suffer the same penalty as a drunk driving charge, and also, possibly, have that conviction interpreted as a prior offense if he does get convicted and sentenced for DUI in the future (even though he was never proved to have been guilty in the prior instance)!

Again I say, if you are stopped for DUI and asked to give a breath sample, comply.  Not doing so will simply land you in trouble no matter what!

If you have been charged with drunk driving in southern New Jersey, please feel free to call me at 856-432-4113 or contact me through this site to schedule a free consultation. If you are looking for more information on New Jersey's drunk driving law, then download my free book, How Much Trouble Am I In? A Guide to New Jersey Drunk Driving Law.

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Steven J. Richardson
Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.