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Breath Test Warning Update

Here, the Judges ignore the statute requiring that the accused be advised of his rights and obligations.   Once again, New Jersey Courts have strayed in a direction to abuse the citizens and bully the masses. It is becoming even more clear that the State of New Jersey needs to overhaul its judiciary. The fact that the law itself requires that to be guilty of refusal,  an individual must have been read the standardized warning does not seem to sway the side stepping panel. A good Sci Fi show centered on judicial revolution would not be to out of order since these judges appear to be from outer space.

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Appeals Court Reverses Course on Breath-Test Warnings

, New Jersey Law Journal


A police officer’s failure to read to a suspected drunken driver the statutory warning about the consequences of refusing to take a breath test doesn’t upset a conviction if the driver voluntarily agreed to take a breath test, a New Jersey appeals court has ruled in a published decision.

The three-judge Appellate Division panel disregarded a four-year-old unpublished ruling to the contrary, which lawyers specializing in drunken driving cases had been using to have some charges dismissed or convictions overturned.

“An officer’s failure to read the statutory statement is irrelevant when the accused submits to the test,” wrote Appellate Division Judge Clarkson Fisher Jr. in State v. Peralta. Judges Allison Accurso and Thomas Manahan joined in the ruling.

Although he did not refer to the case by its name, Fisher said the panel was rejecting the conclusion reached in August 2010 by Appellate Division Judges Edith Payne and Carmen Messano in State v. Tirado. In Tirado, the judges said even in a case in which a suspected drunken driver consented to take a breath test, the conviction should be thrown out if the state could not prove the driver had been read the statutory statement.

“This is a big deal,” said Jeffrey Gold, a Cherry Hill, N.J., litigator who focuses on drunken driving law.

Lawyers, he said, have been relying on Tirado as a possible defense.

“That argument is out unless the Supreme Court changes it, and I don’t think it will,” Gold said. “This ruling effectively knocks out that defense.”

Point Pleasant, N.J., solo John Menzel, who also focuses on DWI cases, said the ruling, if left standing, “seems to nullify the legislature’s requirement that people be given information about the consequences of not giving a breath sample.”

In this case, defendant Pedro Peralta was arrested Nov. 6, 2011, for suspected drunken driving, according to the appeals court’s opinion. He took a breath test, which showed a blood-alcohol content of .19 percent, well above the legal limit of .08. A municipal court judge convicted him, revoked his license for two years, sentenced him to 30 days of community service and ordered him to install an ignition interlock device for two years following the end of the license suspension.

The sentence has been stayed pending the outcome of this appeal.

On appeal, Peralta argued that the convictions should be overturned in part because of the ruling in Tirado.

Fisher said it was unclear whether Peralta had, in fact, been read the statutory statement, but for the purpose of the appeal the panel assumed it had not been read to him.

Fisher said he was not identifying the unpublished ruling because of R. 1:36-3’s prohibition on citing unpublished opinions. He also said that even if that ruling had been published, it would not be binding on his panel.

“But, more importantly, we disagree with the holding attributed to the unpublished opinion and reject the argument that the failure to read the statutory statement matters when an accused consents to providing a breath sample,” Fisher said, adding, “To be sure, the reading of the statutory statement is critical to a prosecution for refusing to give a sample. The statutory statement is inconsequential when consent is given.”

Fisher said the court found “no merit in the contention that the state must prove the reading of the statement’s many paragraphs regarding refusal when the accused has freely consented to give the sample.”

Fisher said in a footnote that the state might want to consider the use of two statements—one for when the suspected drunken driver refuses to take a test and another if the driver submits. “The content of the statutory statement, however, is a matter for the attorney general, not this court,” Fisher said.

Peter Aseltine, a spokesman for the Attorney General’s office, said only that the ruling and the suggestion in the footnote were under review. He referred further comment to the Union County Prosecutor’s office, which handled the appeal. That office did not respond to a request for comment.

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