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).
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.
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 machine and hold the hose to his or her mouth. State v. Sherwin, 236 N.J. Super 510 (1989).
It does not take much to constitute a refusal to submit to a breath test. “Anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. The occasion is not one for debate, manuever or negotiation, but rather for a simple ‘yes’ or ‘no’ to the officer’s request.” State v. Pandoli, 109 N.J. Super 1 (1970).
In State v. Geller, 348 N.J. Super 359 (2001), the defendant failed to provide an adequate sample to five of the six attempts he made blowing into the breathalyzer machine. These actions by the defendant, coupled with his hostile, uncooperative attitude toward the arresting police was sufficient evidence of an intent to refuse to submit to the breathalyzer analysis.