Failure to Be Able to Give Sufficient Breath Samples May Be Refusal. State V. Schmidt 206 NJ 71 (2011)

Failure to be able to give sufficient breath samples may be refusal. State v. Schmidt 206 NJ 71 (2011)
Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, defendant remained among those who have consented and, hence, was not entitled to reading of the Additional Statement.
1. Central to the inquiry in this appeal are the dual questions of what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie. Save for penalties that may be imposed under N.J.S.A. 39:4-50.4a, the substance of the standard statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch. Once the question of what must be disclosed in the Standard Statement is laid to rest, the corollary question of how much must be disclosed seems self-evident: provided the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied. At this Court’s behest, the Executive Branch added the Additional Statement at issue in this appeal, but limited its application solely to those certain delineated instances, including where a defendant’s response is “ambiguous or conditional.” Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, the Court is compelled to reject the Appellate Division’s extension of the Additional Statement as unwarranted. Once consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant’s unilateral actions aimed at defeating the testing process. To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme.

2. No due process notice considerations have been raised by the parties to this appeal in respect of defendant’s failure to submit to the test and, hence, the Court need not address that question. That said, for the avoidance of future doubt and to provide consistency of administration, the inclusion in the main body of the Standard Statement of a notice to a DWI arrestee that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test is both reasonable and salutary. Therefore, the Court recommends to the Attorney General that the main text of the Standard Statement be supplemented to address such instances.

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