Refusing to Provide a Sample for a Breathalyzer will Result in a Conviction if the Defendant Cannot Show Circumstances of the Refusal
Appellate Docket No.: A-5499-18T1
Decided October 26, 2020
Submitted by New Jersey DWI Lawyer, Jeffrey Hark.
In an unpublished opinion, the Appellate Division of New Jersey reviewed a Law Division appeal of a conviction of a refusal to take a DUI breathalyzer because defendant had a brain tumor.
In State v. Harris, defendant drove her car into the passenger side of a vehicle that was stopped at a red light. Officer Fearnhead tapped on the window of defendant’s car to get her attention. Defendant lowered her window and the officer saw that she was holding her registration and insurance card in her hand. Defendant told the officer that she did not know what had happened but explained that she “may have tapped” the other vehicle.
Officer Fearnhead noticed that defendant’s eyes were glassy, and her speech was slurred. She was stuttering and appeared confused. Defendant stated she had not consumed any alcohol or taken any medication that night.
Officer Fearnhead asked defendant to get out of her car and when the officer had the chance to stand next to defendant, she detected a “strong” smell of alcohol emanating from defendant. When the officer again asked defendant if she had consumed any alcohol, defendant replied, “Not really.”
Defendant failed two field sobriety tests as well as the Horizontal Gaze Nystagmus test. Defendant was arrested and transported to the police station where she was read a statement about the breath test and she appeared to understand, but nonetheless refused to take the test. The officer charged defendant with refusal, DUI, and careless driving, N.J.S.A. 39:4-97.
Defendant did not testify at the municipal court trial, but presented a medical expert to show that there was a brain tumor present during the crash that the defendant had removed a month after. The doctor noted that the tumor was located in the area of defendant’s brain that controls the thought process. According to the doctor, he believed the tumor was present and affected defendant’s thought process of hitting the car and refusing to submit to the breathalyzer.
On cross examination, the doctor admitted defendant’s symptoms at the time of the crash were intermittent and not frequent or severe in terms of confusion.
The municipal court judge found defendant not guilty of DUI, but guilty of refusing to provide the breath sample and careless driving. Defendant appealed the Law Division where the judge found the municipal court had properly found that the officers had probable cause to arrest the defendant for a DUI based on glassy eyes, slurred speech, smell of alcohol, and the properly conducted field sobriety tests. Further, although the defendant had an expert testify that she had a tumor affecting her decision making, the expert admitted to the symptoms not being severe and were intermittent. Also the Court noted the defendant appeared to understand the statement of the breath test and still refused.
The Law Division upheld the conviction for refusal and the careless driving. Defendant appealed again and the Appellate Division affirmed the Law Division’s opinion on the same ground.
This case is important to understand that refusing to provide a sample for a breathalyzer will result in a conviction if the defendant cannot show some underlying circumstance that was the cause of the refusal that was outside the control of defendant. Here, defendant attempted to show through expert medical testimony that she had a tumor in the thought process portion of her brain. Yet, because the doctor was unable to provide an opinion that the tumor caused confusion enough for defendant to not understand the statement of the breath test, the defendant was still convicted.
This does not mean that a refusal to take the breathalyzer is an automatic conviction. Challenging the refusal itself may be difficult, but there are other ways to challenge a DUI or a refusal such as the reason for the traffic stop and the probable cause that leads to the arrest – symptoms of intoxication, alcohol odor, and properly conducted field sobriety tests.
If you or someone you know was in a situation similar to this, contact Hark & Hark today.
At Hark & Hark, we represent clients in municipal court for DUI DWI refusal careless and reckless driving. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Aberdeen, Allenhurst, Allentown, Asbury Park, Atlantic Highlands, Avon-by-the-Sea, Belmar, Bradley Beach, Brielle, Colts Neck, Deal, Eatontown, Englishtown, Fair Haven, Farmingdale, Freehold borough, Freehold township, Hazlet, Highlands, Holmdel, Howell, Interlaken, Keansburg, Keyport, Little Silver, Loch Arbour, Long Branch, Manalapan, Manasquan, Marlboro, Matawan, Middletown, Millstone, Monmouth Beach, Neptune, Neptune City, Ocean, Oceanport, Red Bank, Roosevelt, Rumson, Sea Bright, Sea Girt, Shrewsbury borough, Shrewsbury township, South Belmar, Spring Lake Boro, Spring Lake Heights, Tinton Falls, Union Beach, Upper Freehold, Wall, and West Long Branch.