Monthly Archives: July 2012

DWI Intent to operate is more than a mere possibility to operate

In State v Barfuss, unpublished, the appellate div yesterday reversed a guilty plea and conviction for DWI where the defendant only admitted to having the keys in his pocket and that he could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if he wanted to before the police came, but didn’t. The case follows in the line of recent operation cases, mostly unpublished, such as Mize and Putz, calling into question (sui silent) the extent to which the “intent to operate” theory of “operation” i.e. State v Mulcahy, can be used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.

Jeff Gold

A Few Thoughts on the New Refusal Form

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 ?

Jeff Gold

New Refusal Statement Must Be Read to All NJ DWI Subjects

7/5/12 This new refusal statement is required to be read to all NJ DWI subjects.

(revised & effective July 1,  2012)
Enter Defendant’s Name ______________________________________
The police officer shall read the following:
1.  You have been arrested for driving while intoxicated. N.J.S.A. 39:4-50.
2. The law requires you to submit samples of your breath for the purpose of testing to determine
alcohol content.
3.  A record of the taking of the breath samples, including the test results, will be made.  Upon your  request, a copy of that record will be made available to you.
4. After you have provided samples of your breath for testing, you have the right, at your own  expense, to have a person or physician of your own selection take independent samples of your breath,  blood or urine for independent testing.
5. If you refuse to provide samples of your breath, you will be issued a separate summons for the  refusal.  A court may find you guilty of both refusal and driving while intoxicated.
6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license
revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an  Intoxicated Driver Resource Center.  These penalties may be in addition to penalties imposed by the court  for any other offense of which you are found guilty.
7. You have no legal right to have an attorney, physician or anyone else present for the purpose of  taking the breath samples.  You have no legal right to refuse to give, or delay giving, samples of your  breath.  \
8. Any response from you that is ambiguous or conditional, in any respect, to my request that you  provide breath samples, will be treated as a refusal to submit to breath testing.  Even if you agree to take  the test, but then do not follow my instructions, do not properly perform the test, or do not provide  sufficient breath samples, I will charge you with refusal to submit to breath testing.
9. I repeat, the law requires you to submit samples of your breath for testing.  Will you submit the  samples of your breath?
Answer ________________________
If the arrested person does not respond, or gives any ambiguous or conditional  answer short of an  unequivocal “yes,” the police officer shall read the following.
Your answer is not acceptable.  The law requires that you submit samples of your breath for breath  testing.  If you do not answer, or answer with anything other than “yes,” I will charge you with refusal.   Now, I ask you again, will you submit to breath testing?
Answer _______________________