Driving While Intoxicated; Refusal to Submit to Breath Test; Field Portal Breath Testing; Leads to Possible Affirmative Defense under the Confusion Doctrine

Prepared as a Public Service to the People by Attorney Vincent J. Sanzone, Jr., Esq.

More and more local police departments are using portable field breath testing devices for probable cause to arrest DWI /DUI suspects. Although the New Jersey Supreme Court has not approved such devices, and they are not admissible in court to prove probable cause or the offense of driving while intoxicated or impaired. However, more and more police department are using these machines to test suspect’s breath at the scene of the motor vehicle stop. For years the Coast Guard and New Jersey State Police have been using these devices to test operators of vessels and boats in New Jersey waterways for probable cause to arrest the boater. However, not until recently are these devices being used by more local police departments.

The use of these portable breath machines at the scene, pre-arrest, might be fertile ground for the affirmative defense under the confusion doctrine. Under established New Jersey law a defendant who is confused regarding whether he can remain silent (i.e., after being given his/her Miranda rights), and whether because of said rights he must submit to the breath test at the station can raise some interesting issues. Under State v. Leavitt, 107 N.J. 534, 542 (1987), the New Jersey Supreme Court addressed this issue. Normally, refusal to submit to the alcohol breath machine (Alcotest), at the station cannot be justified, and someone who refused to submit to the test will be charged with refusal which carries the same penalties and driving while intoxicated. However, the Supreme Court has held that it is possible, under the right fact pattern, for the defendant, to offer the affirmative defense of confusion, under very limited circumstances, if applicable to the facts of the case.

This doctrine of confusion seems to be more relevant than before based on the fact that police officers who use the portal machines at the scene to test breath might be creating confusion on the part of the motorist. For example if the motorist submits to the portable test and is arrested, and then given his Miranda rights to remain silent. Such actions on the part of the police might cause confusion on the part of the motorist who again is asked to submit to a (station house official Alcotest) test, after he/she has already been given his Miranda rights to remain silent. By requesting the motorist to submit to a second test, one at the scene, and one at the station has the potential in creating confusion on the part of the motorist, who, in most cases because of the consumption of alcoholic beverages might have less cognitive ability to begin with.

In a recent case in Union County, the use of the two machines did create confusion on the part of the motorist who was arrested for both DWI, and refusal. Because the motorist submitted to the portable test at the scene, arrested, then given his Miranda rights to remain, silent, and then asked to submit to a second test at the station, created a mix which led, in that case to the dismissal of the refusal charge, and the defendant having plead only to the none-per se, 3-months loss of license DWI charge. In that case the culmination of these facts caused the defendant to be confused and had no intent to refuse the test at the station. Because the prosecutor looking at the facts fairly and objectively recognized the problem, and realized that in good faith that he could not prove the refusal beyond a reasonable doubt, and accepted the plea.

If you have been arrested or charged for DWI or driving while impaired you are advised to seek the consultation and retention of an experienced criminal defense attorney Vincent J. Sanzone, Jr., Esq., who has many years of experience in defending people accused of this serious motor vehicle defense.

Your decision in choosing a New Jersey criminal defense lawyer is important, make that choice wisely. I invite you to look at the proven results of Attorney Sanzone.

Vincent J. Sanzone, Jr., Esq.
YourCivilRights@gmail.com

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