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Blowing Weakly into Breathalyzer Is Now a Crime in New Jersey

July 1, 2011 - Criminal Law |

The May 26 decision came in a case involving a motorist who was pulled over in Woolwich Township in November 2007. Law enforcement officers noticed the motorist, Aaron Schmidt, driving at least 10 mph below the speed limit and pulled him over. He was subjected to field sobriety tests and then taken in for a Breathalyzer test.

During the test, Schmidt was given instructions to take a deep breath and blow into the mouthpiece. He was told to blow until he received instructions to stop. However, the officer in charge was not satisfied with the strength of the blow. During the second attempt, the motorist blew for 4.9 seconds. After the third attempt also proved unsuccessful, Schmidt was charged with refusal.

He was found guilty both by the municipal court and the law division. However, he appealed, and an appellate division panel ruled that police had violated procedures by neglecting to give an additional warning that is typically used when a person wants to exercise his right to remain silent, hire a lawyer or give a vague response.

The additional statement reads as follows:

"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. 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 Supreme Court ruled that this statement should also include an additional notice about breathing too weakly into the breathalyser device.

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