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January 21, 2010
If you were arrested and charged with a DWI and Refusal, you may recall, just prior to the alleged refusal, the police officer or trooper reading from a sheet of paper. What he read still may not be clear to you, but after he read it you either declined to give breath samples or asked him some questions. If you asked some questions, he may have read a little more. If you still had questions or refused to provide breath samples, it is likely that you were issued a refusal summons. Maybe you tried to blow into the machine with no luck and received a refusal ticket for your effort.
That document that was read to you by the police officer is called “paragraph 36.” This is a standard statement prepared by the chief administrator of the motor vehicle commission. The DWI suspect must be read this statement prior to the administration of the Alcotest/Breathalyzer. The statement informs the suspect of his/her rights, and also of the consequences of refusing to provide a sample. Anything other than an unequivocal affirmative response will be construed as a refusal. In fact, the courts have held that it does not even matter if the defendant does not understand English. The rational is derived from the implied consent laws which basically say that a person who is driving in the state of New Jersey has given their implied consent to the providing of breath samples IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PERSON IS UNDER THE INFLUENCE OF ALCOHOL. Does this mean that you can make your own probable cause determination while sitting at the station. NO. That is for your lawyer to argue later on. If it is determined at a later date IN COURT that there was not sufficient probable cause to request breath samples in the first place, the case will be dismissed, including the refusal. Probable cause is a legal term of art and is a determination based upon the TOTALITY OF THE CIRCUMSTANCES.
Many people ask me “Didn’t I have the right to a lawyer before they asked for the samples?” The short answer is no. But you do have the right to have an independent blood analysis performed, and you do have the right to a copy of the Alcohol Influence Report, and you do have the right to have the form read to you. Do you have the right to understand it? Apparently not. Basically, the only requirement placed upon the officer is to read paragraph 36 to the suspect. They can read it fast, they can read it slow. Most likely you will be so upset and scared that you will not understand it anyway.
Many of the litigated issues in refusal cases could be easily resolved if the police were willing to place video camera equipment and audio recording equipment in the DWI processing rooms. Well, lots of departments tried this. Guess what, they started losing DWI and Refusal cases and promptly removed them. Such is life. However, some departments still maintain recordings and it makes for a much more honest prosecution.
The penalty upon conviction for refusal is 7 month loss of license and the possible imposition of a ignition interlock system. This is in addition to any penalties you may be facing for the DWI offense. Bottom line, its time to fight. You must higher experienced counsel who litigates DWI offenses and will give you a fighting chance to WIN. Does this mean that great lawyers always win refusal cases. NO. But we do win sometimes, and that is better than never. And never, in my opinion, is how often an unrepresented client wins a refusal case.