11/30/11. Per the New Jersey Law Journal (coming out next week) we will be informed that the refusal bill I mentioned last week (which would remove the requirement that police inform defendants they do not have a right to refuse) got pushed up in committee … before the State Bar even got a chance to review it… and that in the Attorney General’s words, the bill was its own “initiative” to defeat defendants who do “ not speak English”. I leave it to you to decide whether that sounds kosher, but if passed the bill would seem to rob all defendants of the due process right (or at least a fundamental fairness right) to know that refusal by silence or assertion of right to a lawyer is not encompassed within Miranda. I wonder if this bill’s reasoning isn’t like throwing the baby out with the bath water?
11/22/11. NJ assembly bill A3400 which passed the judiciary committee yesterday and now moves on to the Assembly as a whole. It is a bill that answers State v Marquez not by dealing with the language issue but by bypassing the requirement that the notice be read at all. There may not be too much left of the confusion doctrine now, although it survives, but this bill may resurrect it in spades since defendants would be advised of Miranda and not at all as to the lack of a right to refuse a breath test. Once again IMHO there seems to be a rush to change a law that just “ain’t broke”. It might be better to say it only has to be read in English that do away with the reading altogether, at least the vast majority of citizens would still be informed that refusing to take a breath test has its own consequences is not like remaining silent.
Today in State v Zeikel, (published) the App Div held once again that a NY driving while impaired counts as a prior (see State v Lawrence App Div 1983) . This time the court had to address the amended NY statute but also came to the conclusion was still “similar” enough to our 4-50 to count. This panel went on to hold that changing sentencing laws was not an ex post facto law or a due process violation. These latter holdings are significant as they would lay the ground work for constitutional muster if the legislature changed the 4-50 statute (post Ciancaglini) to make a refusal count as a prior DWI. The Court also addressed the issue of a defendant’s certification, here that the reading was a .06, as alone not enough to sustain his burden of persuasion. .