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Failure to Give Sufficient Breath Sample in DUI Case Ruled a Refusal in NJ

Posted on Jun 03, 2011

In New Jersey, all drivers are required to give two breath samples to a breathalyzer if the police have probable cause that he or she is driving drunk. You do not have the right to refuse to do so. Upon being taken to the station, a standardized statement is read to the driver (commonly referred to as paragraph 36), basically explaining that they are required to give breath samples. If an "ambiguous or conditional" answer is given, then a supplemental paragraph is read. If you do not then agree to give the sample, you are charged with a refusal.

But what if you agree to give the sample when the first part of Paragraph 36 is read? You say "Yes" loud and clear. Are you safe from a refusal charge? Not necessarily, says the New Jersey Supreme Court.

Unwilling/Unable to Give Sample? Refusal!

In the case of State v. Schmidt, the court held that a driver can still be charged if he is unwilling or unable to give a sufficient breath sample to the machine; no further warnings are necessary from the police (such as reading the second part of Paragraph 36).

For the Alcotest breathalyzer machine to get an accurate reading, the driver must blow for at least 4.5 seconds and yied a volume of 1.5 liters of air. In this case, the driver gave a short, one second blow of air, and then one lasting 4.9 seconds. When instructed that he had to give two samples for at least 4.5 seconds, or be charged with a refusal, he again gave a short, one-second blast of air.

The police then charged him with refusal, and the conviction was upheld by the Supreme Court. The question is left open as to whether, if a medical reason is given for failure to give a sufficient sample (like COPD), a refusal charge would still stick.

The court clearly was concerned with people trying to get out of a DWI conviction by gaming the system. They do not want drivers agreeing to take a breath test and then refusing to give enough of a sample for the machine to get an accurate reading.

So What Do You Do?

So, if you are stopped for drunk driving here in southern New Jersey, say yes to the test, take a deep breath (twice), and blow! If, as a result, you are charged with DUI, 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.