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 than 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 too 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 lead, 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., (CriminalDefenseNJ.com) 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.
CriminalDefenseNJ.com
Law
Office of Vincent J. Sanzone, Jr., Esq.
P.O. Box 261
277 North Broad Street
Elizabeth (Union County), New Jersey 07207
Tel:
(908) 354-7006
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