June 1, 2011
Late last week New Jersey’s Supreme Court decided in State v. Schmidt that once a person gives initial consent to providing a breath sample, no further action by the police is necessary to provide additional warnings to him in the event he does not provide adequate breath samples. In other words, teh defendants have to cooperate immediately with all instructions. The officers are not required to ask more that one or two times to have the defendant provide a breath sample or beg time and again, either.
InSchmidt, the police arrested for drunk driving and, prior to administering a breath test, read him the first portion of the standard statement required under NJSA 39:4-50.2(e) (aka paragraph 36). The defendant consented to taking a breath test, but thereafter was either unwilling or unable to provide adequate breath samples. The defendant claimed on appeal that the police should have read him the second portion of paragraph 36 before charging him with the refusal offense.
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