Defense to a Refusal Charge in New Jersey: The Confusion Doctrine

There are very few defenses to a refusal charge in New Jersey.  In order to be found to have refused a breath test in violation of N.J.S.A. 39:4-50.4, the State must prove the following four essential elements:

(1) probable cause to believe that the defendant had either been driving or was in control of a motor vehicle while intoxicated; (2) police officers in fact arrested the defendant for driving while intoxicated; (3) officers informed the defendant of the consequences of refusing to submit to a breath test and subsequently request that defendant submit to a breath test; and;(4) the defendant refused to submit to the breath test.[State v. Marquez, 202 N.J. 485, 503 (2010).]

If you are arrested on suspicion of driving while intoxicated (DWI), however, it can be a confusing and intimidating situation. There are many questions that may run through your mind, such whether or not you have a right to refuse the test or consult with an attorney before deciding whether or not to submit to the breath test. In fact, the various statements read by police officers to individuals arrested for suspicion of DWI can often compound this confusion.

Police officers first usually read the DWI the Miranda warning, followed by the “implied consent” warning. While the Miranda warnings state that a defendant has the right to remain silent and the right to consult with an attorney, the “implied consent” warning specifically informs the suspect that the right to remain silent and the right to consult with an attorney do not apply to the taking of breath tests.

In State v. Leavitt, 107 N.J. 534 (1987), the New Jersey Supreme Court recognized that there is an inherent contradiction when informing a defendant pursuant to Miranda that he or she has the right to remain silent and to consult with an attorney, but that these rights do not apply to the taking of a chemical breath sample. Thus, the Court recognized that this contradiction may cause confusion in an appropriate case. See also State v. Rodriguez-Alejo, 419 N.J. Super. 33 (App. Div. 2001) (finding that the confusion doctrine justified reversal of the defendant’s conviction for refusal where had a limited knowledge of English.)

It is important to note, however, that the burden of proof is on the defendant to prove the defense of confusion. Moreover, the source of confusion may not be due to the defendant’s intoxication.

The assistance of an experienced DWI defense lawyer is therefore invaluable in these cases.  If you were confused and did not understand your rights or what was happening when you were requested to take a breath test, we can help. The attorneys at Wolf Law have over 30 years of DWI defense experience.  Please call us at 732-741-4448 for a free consultation.