DUI, Refusal, and Procedural Rights

Here’s a question (or two, or a bunch) for the lawyers out there, particularly anyone specializing in traffic law, especially DUI in New Jersey, assuming that any of them read Policy of Truth:

I don’t drink, much less drink and drive, so I’m sitting here in a calm moment with no legal issue at stake trying to understand New Jersey law (NJSA 39:4-50.4a) on DUI testing and prosecution for refusal. It just amazes me how poorly drafted even the simplest and most ubiquitous law turns out to be.

It’s common knowledge that you have the right to decline to take a field sobriety test when stopped on suspicion of DUI, but there’s no reference whatsoever to field-based testing (or consent, or right of refusal) anywhere in NJSA. Why is that? What am I missing?

It’s also common knowledge that you have the right to decline a Preliminary Alcohol Screening (PAS) test at the scene (meaning, in the field, at the road side, with a hand-held device) prior to a determination of probable cause and arrest for DUI. There’s not a word about that, either. Not having been stopped for DUI (at least not explicitly), I’m not sure whether law enforcement in NJ applies PAS tests. Does anyone know?

The statute says: anyone who operates a motor vehicle is taken implicitly to consent to give a breath test “at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).” I’m not sure how I managed to give “consent” to that, because I’m not even sure WTF it means.

First of all, what does “reasonable grounds” mean? Does it refer to the reasonable suspicion established in a Terry stop, or is it the probable cause that leads to arrest? Or is it something else?

If “reasonable grounds” = “reasonable suspicion pursuant to a Terry stop,” then essentially no motorist has the right to refuse a breath test at any stop ever. Any refusal to take the test furnishes grounds for further arrest for refusal, which upon conviction leads to an automatic license revocation.

But if “reasonable grounds” means “probable cause furnishing grounds for arrest,” then motorists have the right to refuse breath tests during the time between the first moment of the stop and the time when they are arrested upon probable cause. Which means, of course, that they can refuse to furnish the evidence of probable cause that might lead to their arrest.

It appears to be up for grabs which of these two interpretations governs, but it’s hardly a trivial matter. One refusal leads directly to arrest and license revocation; the other leaves room for not being arrested and not having your license revoked. How can anyone have the gall to say that motorists have “consented” to a breath test when the law fails to clarify which of the two interpretations is authoritative?

The statute is written as though the only existing test was a breath test. Are there no blood-drawn tests? Is there no option between breath and blood-drawn tests?

And isn’t it misleading at best to refer to the officer’s demand that the motorist take the test as a “request”? A request is something you can decline. But if declining the “request” leads to arrest for refusal to comply, what we’re dealing with is an order, not a request. Put somewhat differently, what we’re talking about is the difference between saying no and being left alone, and saying no and being pulled bodily out of the car, slammed to the ground, handcuffed and jailed–in a situation where perceived “resistance” will get you shot. How can anyone write a statute that glosses over a distinction this crucial?

My favorite, though, is this:

In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

That “option” has a certain poignancy in a state where the State Police’s forensics lab has been held responsible for botching more than 20,000 DUI lab samples. But it’s a mystery how the option is supposed to be exercised in the circumstances of an actual case. You’ve been arrested at 2 am for DUI. You’re in jail. You demand a lawyer. Then you demand…the presence of your personal favorite phlebotemist? I’m sure we all walk around with our phlebotemist’s 24 hour number in our contacts–i.e., the contacts of the phone that’s taken away from you when you’re arrested.

Are our legislators just stupid, or are they intelligent enough to understand what they’re doing, but indifferent to what happens in the world they’ve created?

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