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 the right to remain silent and speak to an attorney for legal advice, but that these rights do not apply to the taking of a breath sample. This contradiction may cause confusion in an intoxicated defendant. Accordingly, a defendant may, under certain limited factual circumstances interpose a defense to a refusal charge based upon confusion. As the Supreme Court has held, “We recognize that despite the best of efforts some confusion may remain. Without resolving whether any defendant may validly assert the defense, we agree with the view expressed in the Attorney General’s brief that the exclusive, narrow exception to the general rule that refusals cannot be validly justified, would have to be premised on a record developed by a defendant to show that he had indeed been confused. We also agree that it is entirely appropriate that a defendant bear the burden of persuasion if he wishes to establish a confusion claim. We suspect that in most cases the defendant makes a more practical than legal judgment about exercising the statutory right to refuse a blood alcohol test in light of the generally known consequences.” State v. Leavitt, 107 N.J. 534 (1987).

Therefore, the defense of confusion is available in very limited circumstances to refusal charges where the defendant can show that he or she was confused about the right to remain silent versus the right (or lack thereof) to refuse to submit to the breathalyzer test.