2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Tuesday, July 04, 2017

In DWI refusal cases the following caselaw must be argued at trial if refusal based on not sufficient sample

In DWI refusal cases the following caselaw must be argued at trial if refusal based on not sufficient sample

As decided in State v. Foley 370 N.J. Super. 341 (Law Div. 2003), a published Law Division decision, written by Judge Orlando in Camden County (refer to N.J. Super LEXIS 423):

“This Court concludes that the number of persons charged with refusal who attempted to deliver a breath sample on the 7110 in Pennsauken to be too high and therefore unacceptable…..The State will have to make the changes to the firmware parameters which it believes will rectify the problem. Then, through a period of field-testing, determine if the desired result has been achieved. Until that has been done, no person who has delivered a breath sample of at least .5 liters on the 7110 may be charged with refusal.”

        At the present time, the State has not presented any documentation that “field testing” of the 7110 has resolved the refusal problems cited by Judge Orlando in State v. Foley.”
     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:
   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).   

The Alcotest operator must follow specific machine instructions.
     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.
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:   
         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 don't destroy anything, whether it's 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 operator's 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.