Curing a Refusal

We are many times confronted with the question of whether or not you can "cure" a refusal after refusing initially to submit to a breathalyzer test. The answer is no. This issue was examined in State v. Bernhardt, 245 N.J. Super 210 (1991). In this case, the defendant refused at least 10 requests from the State Police to submit to a breathalyzer test. The police, for good reason, considered his Continue Reading...

The defense of confusion to refusal charges

The Confusion doctrine is a very narrow defense to refusal charges in New Jersey. There is a statutory duty to take a breath test and any refusal to do so usually results in charges for refusal as well as a DWI (because they can prove intoxication by using the field sobriety tests and video). However, there is an inherent contradiction in informing a defendant under Miranda that he generally has Continue Reading...

Acts Constituting a Refusal

There is significant case law as to what constitutes a refusal under N.J.S.A. 39:4-50.4a. A defendant who simply remains silent in the face of a police request to submit to a breathalyzer test has refused to take the test. The police have no obligation, when confronted by a defendant who remains silent when asked to submit to a breath test, to set up the machine and lead the defendant to the Continue Reading...