Refusal To Submit To Breath Test Case Heard By Supreme Court
In addressing DWI and refusal issues, the New Jersey Supreme Court has rendered an opinion in the case of State v. Spell. The battle being fought between the defense and the State in Spell was whether or not law enforcement had to read the last paragraph of the required refusal form (referred to as the second paragraph) in every DWI case. The Appellate Division, in Spell held that this measure was always mandatory even when an accused unequivocally refused to submit to the Aloctest. The Supreme Court disagreed and reversed the Appellate Division, opining that the second and final warning need not be read where an accused "either conditionally consents or ambiguously declines to provide a breath sample."
Having argued that a client's refusal charge be dismised because the client's actions were ambiguous or equivocal and that he should have been read the second paragraph as a precatory warrning, I find this decision troubling. Many cases will continue to be litigated on the issue of whether the second paragraph should have been read. Had the Court made the reading of the second paragraph mandatory, upon police in DWI cases, then the litrigation on this specific issue would be moot.
By: Thomas Martin, Esq. Thomas is a DWI and Criminal Lawyer who can be found at www.jerseycriminallawyer.com
