Where You Are Driving is Key in DWI/Refusal Cases
Posted By Steven J. Richardson on February 9, 2010
As I have posted in the past, refusing to give two breath samples after being arrested for drunk driving can have serious consequences. Under New Jersey law, more specifically NJSA 39:4-50.2, a driver is deemed to have consented to providing said samples if he or she operates a motor vehicle on a public road, street, highway or quasi-public area of the State, providing that the police have probable cause. Thus where you are driving your vehicle can become very important in a drunk driving or refusal charge.
Until this past summer, there has been very little case law defining the concept of “quasi-public area.” In August of last year, however, the New Jersey Appellate Court ruled, in State v. Bertrand, that a private parking garage with sufficient room for 300 spaces constituted a quasi-public area sufficient to trigger the requirement that the intoxicated defendant (who was a trespasser there) submit to providing samples of his breath. Although this does help in defining the language of a particular statute, the ultimate outcome also provides an ironic lesson.
In that case, the Defendant was found passed out on a bench in the garage a distance from his vehicle, which had car keys in the ignition. He was belligerent with the police officers, showing clear signs of intoxication, so he was asked to submit to a field sobriety test. He refused to without consulting with an attorney first. He was then arrested and asked to submit breath samples; he refused. As a result, he was charged with both drunk driving and refusal to submit to a breathalyzer test. Because the state could not prove he was operating the vehicle while intoxicated, the court dismissed the charge. However, he was ultimately convicted on the refusal. If he had simply given the breath sample, he would have been cleared! Instead, he must suffer the same penalty as a drunk driving charge, and also, possibly, have that conviction interpreted as a prior offense if he does get convicted and sentenced for DUI in the future (even though he was never proved to have been guilty in the prior instance)! Again I say, if you are stopped for DUI and asked to give a breath sample, comply. Not doing so will simply land you in trouble no matter what!
Thank you for sharing this fine post. Very interesting ideas! (as always, btw)