Posted on Jul 19, 2010

The title of this post sounds funny, but it can cause problems for people that are arrested for drunk driving in New Jersey.  The breathalyzer used here in New Jersey is the Alcotest 7110, and it is a rather sophisticated machine.  After being given two (2) breath samples, it spits out a report that sets forth your Blood Alcohol Content (BAC).  Score over .08%, and you are presumably impaired by alcohol (i.e. guilty of drunk driving).

For the machine to work, you have to blow a minimum volume of air into the tube (1.5 liters) over a minimum period of time (4.5 seconds), and yield a "minimum flow rate" of 2.5 liters per minute.  The machine itself offers up to eleven (11) attempts to collect two acceptable breath samples.  After that, the police have the option of either terminating the process and resetting the machine for eleven (11) more tries, or charge you with refusal, which is a separate offense that carries essentially the same penalties as drunk driving!

What Do the Police Do in Taking Breath Samples?

When someone is arrested for drunk driving and taken to the police station, they are read the first  part of a standard statement saying that they do not have the right to refuse the breathalyzer either on the grounds of wanting an attorney present or their right against self-incrimination.

If the person does not respond, invokes their right to an attorney or against self-incrimination, or if the response is ambiguous, the police must read the second section of the statement, which reiterates that those rights do not apply, and that a clear answer must be given in the affirmative to avoid a charge of refusal.  But what if the person agrees unequivocally to give breath samples after being read the first section, but then is unable to give a sufficient sample, what happens then?

What Happens If You Just Can't Do It?

Well, fortunately New Jersey's Appellate Court gave us the answer at the beginning of this month in the case of State v. Schmidt .  It ruled that before charging a person with refusal, the police should read the second part of the DWI standard statement in those circumstances where the defendant gives an initial, unqualified consent to submitting a breath sample and thereafter is unable or unwilling to provide an adequate sample for analysis.

Sometimes people try to "game the system" and look like they are cooperating and giving samples, but in reality are just trying to make it look like there is something wrong with the machine.

So What Do I Do?

This does add an additional layer of protection by requiring the police to say, in effect, "stop fooling around or we will charge you with refusal," but it is not the end of the story.  If you find yourself in that situation, bear two things in mind:

  1. Don't try to be cute, they can still get you; and
  2. if you have asthma, COPD, or some other disorder that may well interfere with your ability to give a proper sample, speak up! Let the police know that no matter what you do, it just isn't going to work.  They can always try taking a blood sample, but at least you can try to avoid a refusal charge, which is never good.

As I have said many times on this site: the law does provide certain protections, but that does not mean you should not speak up for yourself and provide protections of your own.

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.

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