Law Offices of Michael T. Nolan, Jr.

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Insufficient Readings on Alcotest Amounts to Refusal

A case concerning whether a Defendant consented to a breath-based alcohol test ("Alcotest") was decided in May by the New Jersey Superior Court, Appellate Division. After being brought to police headquarters for suspected drunk driving, the Defendant was read his Miranda warnings as well as the Standard Statement, which is required to be read to suspected drunk drivers. The Standard Statement informs defendants that the law requires them to give breath samples to test for blood alcohol concentration. Furthermore, the Standard Statement provides that if a defendant refuses to submit to an Alcotest, such defendant will be issued a separate summons for refusal, which carries its own penalties such as automatic loss of driving privileges.

In this case, the defendant unconditionally consented upon request to submit to an Alcotest. However, the Defendant failed to provide a sufficient breath sample-the police claimed the defendant blew for only one second during each of the samples instead of the required four seconds. After failing to provide an adequate sample for the third and final attempt, the Defendant was issued a summons for refusal to submit to an Alcotest.

Attorneys for the Defendant argued that the Defendant's insufficient breath samples surmounted to an ambiguous or conditional response to submit a breath sample rather than a refusal to provide a proper sample. The importance here is that an ambiguous or conditional response requires police officers to read an Additional Statement to the Defendant rather than the Standard Statement required in the case of a refusal.

The Court rejected this argument, holding that once the Defendant communicated his clear intent to consent to the breath test, that consent will be treated as such regardless of whether the Defendant subsequently fails to provide an adequate sample. In short, once you have consented to take the Alcotest, insufficient breath samples cannot subsequently change that consent into an ambiguous or conditional response to undergo an Alcotest. Therefore, the police officers were not required to read an Additional Statement to the Defendant once the Defendant consented to the Alcotest. Ultimately, the police officers correctly read the Standard Statement to the Defendant, and the Defendant was properly charged with refusing to submit to an Alcotest. 

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