Legal landscape note: This article was originally published in 2014 and describes the law as it stood at that time. New Jersey law changes frequently.
You submitted to a breath test after a DWI arrest, but the officer never read the statutory warning about what happens if you refuse. Does that omission invalidate the conviction? In the published 2014 decision State v. Peralta, a three-judge Appellate Division panel said no when the driver voluntarily provided the sample.
The ruling rejected the reasoning of a 2010 unpublished decision, State v. Tirado, which defense lawyers had used to argue that a conviction should be thrown out if the State could not prove the standard statement was read -- even where the driver consented. Peralta closed off that line of defense for consent cases, while confirming that the reading of the statutory statement remains critical in a prosecution for refusal.
The defendant in the case had been arrested on suspicion of drunk driving, took a breath test showing a blood-alcohol content of .19 percent, and was convicted in municipal court. On appeal, the panel assumed for the sake of argument that the statement had not been read to him and affirmed anyway, because he had freely consented to give the sample.
The distinction matters: if you are charged with refusal, whether and how the standard statement was read to you can be central to the case. If you submitted to the test, the fight shifts to other issues -- the stop, the operator's qualifications, and the reliability of the result. An experienced DWI attorney can evaluate which defenses actually apply to your facts.
Based on reporting by Michael Booth, "Appeals Court Reverses Course on Breath-Test Warnings," New Jersey Law Journal, October 31, 2014.