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 conduct sufficient to constitute a refusal. However, after he spoke with an attorney by phone, he asked the police if he could take the breath test. The police, at this point, declined to administer the test. The Appellate Division held that there is a bright line rule of law in New Jersey that there is no right for a defendant to “cure” an initial refusal to submit to the breathalyzer test by agreeing to submit to the test later. Under the public policy of the implied consent law, there is no right to cure an initial refusal to submit to a breathalyzer test. State v. Corrado, 184 N.J. Super 561 (1982).
About John Marshall
Founding partner at The Law Offices of John Marshall.