By on June 15, 2011

Blowing into a breathalyzer weakly is grounds to convict someone of the crime of refusal, according to a May 26 decision by the New Jersey Supreme Court. Refusal carries penalties nearly as severe as a conviction for driving under the influence of alcohol (DUI). On November 29, 2007 at 2:36am, Sergeant Joe Morgan of the Woolwich Township police department pulled over Aaron P. Schmidt after noticing that he was driving 10 MPH under the speed limit. Morgan administered the usual field sobriety tests and decided to bring Schmidt to headquarters for a breath test.

Schmidt agreed to submit, and another officer told him to “take a deep breath and blow into the mouth piece with one long continuous breath” until he was told to stop. The officer was unsatisfied with Schmidt’s blowing. In a second attempt, Schmidt blew for 4.9 seconds — sufficiently long — but the Alcotest machine only registered 1.2 liters of air. After a third attempt failed, Schmidt was charged with refusal.

The municipal court and the law division each found Schmidt guilty, but an appellate division panel found that police had violated proper procedures by failing to read an additional warning statement specially prepared for cases where a person attempts to assert his constitutional right to remain silent, seek an attorney or provide an ambiguous response.

“I have previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood,” the additional statement reads. “Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.”

The state supreme court found it unnecessary to read this additional warning because Schmidt’s verbal assent to be tested was unambiguous.

“Once that consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant’s unilateral actions aimed at defeating the testing process,” Justice Roberto Rivera-Soto wrote for the majority. “To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme.”

Although the court found the standard warning was sufficient, the justices decided that a specific notice regarding blowing weakly into the machine should be added.

“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,” Rivera-Soto wrote.

The court reinstated Schmidt’s conviction. A copy of the case is available at the source link below.

Source: New Jersey v. Schmidt (Supreme Court of New Jersey, 5/26/2011)


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19 Comments on “New Jersey Supreme Court Criminalizes Weak Breathalyzer Blows...”

  • avatar

    Why not just do a blood test?

    • 0 avatar

      Blood tests are considered “invasive”.

      • 0 avatar

        No need for the quotes. They are invasive.

        If done improperly, a blood test could kill you. Heard of viruses?

      • 0 avatar

        I coudn’t agree more. Sticking a needle in my arm is a violation of my rights. Having 7, cops and 9 police cars, stopping everybody is a waste of police resources and taxpayers money. Its also a violation of my rights.

        An “impaired driving” charge is worth about 50K here in Ontario. Two beers,and a power tripping cop will cost you three days suspension and $80 to retrieve your car. Oh yeah,I forgot they tell your insurance company of your “crime”. Tack another 10% on your insurance.

        However I found a solution. Two beers for Mikey,and the car doesn’t move. I carry cab fare in cash at all times. If I know I’m going to be drinking, I either leave the car at home, or drive the old Jimmy and leave it anywhere.

        I don’t agree with our laws. But the law is the law.

  • avatar

    Puller over for driving 10mph _under_ the speed limit?

    • 0 avatar

      It’s classic drunk behaviour. My father, who drives 10-15km/h under as a matter of course, gets stopped and casually tested for sobriety often.

      • 0 avatar

        I think at least in some states a sufficiently good lawyer could get this case thrown out of court. I don’t think it’s everywhere that police is allowed to “fish” around for drunk drivers without having someone clearly break a law. Just a few days, there was this article on how a motorist in California could not be charged with possession of narcotics simply because the police had no good cause to pull him off at that time.

    • 0 avatar

      simple…. ALWAYS speed when your drunk. Problem solved.

    • 0 avatar
      George B

      Always use cruise control when driving home from the bar. Focus on lane position and let the cruise control make sure you’re driving the speed limit. That’s how county folk get home after a night of drinking.

  • avatar

    Troll headline. Deliberately blowing so softly that the breathalyzer won’t be able to read your blood alcohol level is the same as not blowing at all, which is to say it’s the same as refusing the test. Refusing the test is already illegal.

  • avatar

    Well the easy solution is not to D & D but failing that…..
    BAL levels are more accurately detected with Blood tests, but only trained staff can draw blood safely.So the breath system allows a sample to be drawn safely however the integrity of the machine is questioned and the method requires minimal cooperation of the suspect.

    It’s the minimal cooperation of the individual I have a problem with, it’s close to self incrimination and refusal smacks of punishment for refusing to assist in one’s own conviction.

    Take the perp to a hospital or hire a trained phlebotomist. There is plenty of money in DUI fines for this, we could even charge the perp as part of the fine (I understand some jurisdictions charge a fee for the breath test already).

    A person’s blood is evidence right in front of the officer, there is no reasonable expectation of privacy where the presence of a substance in blood while operating a motor vehicle is suspected. What’s unique about this situation is not the presence of alcohol, but the percentage level. Determining if a crime was committed hinges on that level and all parties involved are best served by a blood test to determine it.

    FWIW I’m glad he pulled him over and got him off the road.

    • 0 avatar

      Me too. I have no problem with cops pulling over suspicious vehicles for whatever reason. They’re out there to protect the public. What would’ve happened if the cop hadn’t pulled him over and he went on to run down a pedestrian or fell asleep at the wheel and drove his car into someone’s bedroom?

      In any case, it’s a pretty safe bet that at 2:36 in the morning a car driving 10mph under the limit usually has a sot at the wheel. Cops are trained to spot this type of driving behaviour, and I’m frankly glad they act on their suspicions.

    • 0 avatar

      Interestingly, in Maine you do not need any particular blood alcohol level to be convicted of DWI. Though if you are over .08 the conviction is “automatic”. They can still prosecute you if they want to for under that level, but the prosecution then has to PROVE you were actually impaired. No burden of proof at all if .08 or over. So they normally will not bother unless you killed someone. Or pissed off the cop. It is up to the prosecutor though, the charges still get filed if you have detectable BAC, even if you are under .08.

      A friend went through all this recently – he got pulled over for speeding on his way from the bars to my place to drop off my roommate. Failed the field sobriety tests, so they took him to the station for the breath test. Blew a .06. Charges filed, but the state declined to prosecute. He was pulled over for speeding, of course. Still cost him a $250 speeding ticket, a $200 tow, and a $200 impound fee. Plus the impact on his insurance of the ticket.

  • avatar

    Would it still count as refusal if the accused drunk driver is an asthmatic with weak lungs to begin with?

    • 0 avatar

      To a cop doing his job on the side of the road, absolutely. This is the only way to catch habitual drunks, who practice every trick in the book.

      Fortunately for the innocent we also have courts, where a legal defense can be mounted and experts can be consulted before a final judgement is passed.

  • avatar

    tankinbeans beat me to it. I am an asthmatic, and my lungs collapsed at birth. So I have a lot of scar tissue and about 1/3 less lung capacity than a normal person my size. I suspect that I would have serious trouble blowing as much air for as long as they demand. I NEVER drive drunk, so I am not too worried about this, but I am sure I am not the only person in NJ with lungs like this.

    • 0 avatar

      So do we worry about inconveniencing the occasional innocent person, by requiring them to prove their disability to a judge, or do we let 100 drunk drivers get away with the oldest trick in the book?

  • avatar

    “I remember the first time I got pulled over for driving too slow”

    Or words to that effect, Fresh Prince of Bel Air “Mistaken Identity” where Will and Carlton are pulled over for being black.

  • avatar

    It’s just not worth it to drive after drinking. I use to not think twice about driving after a couple beers or mixed drinks, no more than two though. I’m 225 pounds and I’m sure that my blood alcohol rating would still be legal. But today, it’s 4 bucks for a beer or buy a 5 dollar “cocktail” that the skittish bar waved the bottle close to the glass. So, I buy my beer at Target, $12.50 for a 12 pack of Corona, sit on my patio and grill/chill.

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