In State v Barfuss, unpublished, the appellate div yesterday reversed a guilty plea and conviction for DWI where the defendant only admitted to having the keys in his pocket and that he could have moved the vehicle if he wanted to before the police came, but didn’t. The case follows in the line of recent operation cases, mostly unpublished, such as Mize and Putz, calling into question (sui silent) the extent to which the “intent to operate” theory of “operation” i.e. State v Mulcahy, can be used by the State.
A few thoughts on the new form. (1) If an officer does not use the new form,
then under O’Driscoll, the refusal has to be dismissed. While O’Driscoll has
certainly been used lately to toss refusals because the interlock was not
part of the language in the old form, that is an expansion of the O’Driscoll
holding, while not reading the correct form is exactly on point with the
case. Therefore, with the new form being issued is seems clear that only
reading it is acceptable. (2) The State has taken this opportunity to add
language meant to make clearer that there can be “blowing refusals” (my term
not theirs.) In State v Schmidt, the Supreme Court held that a blowing
refusal did not require the reading of the additional refusal statement.
However, factually in Schmidt, the officer advised the defendant that is he
didn’t blow properly, he would be charged with refusal. While there was
nothing in the prior refusal statements about this, the new form now advises
that you will be charged in that case. (3) The statement continues to be at
odds with the AIR issued in every case. The statements says that you will be
given a copy of the results “upon request” while every AIR printed in the
state says at the bottom that a copy is given to the subject. (4) Shouldn’t
the new form mention (per State v Marquez) that the defendant has the right
to fully understand what is being said, i.e. in his native tongue. Now, I
get that it will be argued that if the def understands enough to get that
advice maybe he doesn’t need it, but wouldn’t it be better to makes sure ?
7/5/12 This new refusal statement is required to be read to all NJ DWI subjects.