Second Breath Test Warning Not Required

June 2, 2011
By Michael J. Jurista, Esq. on June 2, 2011 9:12 AM |

The New Jersey Supreme Court recently concluded by a slim majority that suspected drunken drivers who consent to a breath test, but who fail to give an adequate sample, need not be given a second formal warning before being subjected to a second test.

In State v. Schmidt, A-35-10, the Defendant was given a field sobriety test after he was stopped for erratic driving. Following same, the Defendant was taken to the police station, read his Miranda rights, and read the required 11-paragraph Motor Vehicle Commission statement which states, among other things, that the Defendant is required to submit a breath sample and the right to remain silent and to consult an attorney are unavailable at this time. After receiving said statement, the Defendant consented to the breath test. However, the Defendant failed to give an adequate sample by way of volume and/or duration. Accordingly the officers warned him that he was facing a refusal charge if he did not provide a sufficient sample. The Defendant then thereafter gave the third sample which also was inadequate thus prompting the police to charge the Defendant with refusal. Based on the foregoing, the Defendant was convicted in Municipal Court.

The Appellate Division, who heard the case following an appeal to the Superior Court, reversed the conviction stating that the officers were required to read the 11-paragraph statement again prior to subjecting the Defendant to another breath test.

In reversing the Appellate Division, and upholding the conviction, the New Jersey Supreme Court ruled that the Defendant "remained among those who have consented and, hence, was not entitled to any additional warnings." Justice Rivera-Soto, in writing for the majority, stated that it is unequivocal that defendant consented to provide the original breath samples and "once that consent is given, it cannot be vitiated, impeached or otherwise revoked by Defendant's unilateral action aimed at defying the testing process."

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