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New Jersey Court Confirms Right to Refuse DUI Smell Test

November 9, 2011 | Posted In Recent News - Criminal Law, Juvenile Law |

http://blogs.wsj.com/law/2011/10/04/the-right-to-refuse-a-smell-test/?mod=WSJBlog&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29

A New Jersey appeals court has ruled that a police officer who sniffed the breath of an underage drinker should have informed the young man of his Miranda rights before doing so.

The New Jersey state appeals court was ruling in an incident that occurred in 2009.   Police at the time were alerted by complaints about a party. When they arrived at the venue, they found an underage crowd and many of the partiers fled the scene.  Those who were not able to do so were lined up, and one police officer began sniffing their breaths.  However, when the officer reached one particular drinker, the young man panicked and told the officer he had had just one drink.  He was subsequently arrested and convicted of underage consumption of alcohol.

The appeals court, however, has now held that, by sniffing the young man’s breath, the officer was inadvertently asking questions about whether the boy had consumed alcohol.  As such, the young man had the right to have Miranda warnings read out to him before he blurted out that he had had a drink.  Because no Miranda warnings were read and the teenagers at the party had not been informed of their right to remain silent,   the young man’s statement was suppressed. 

The court also ruled that, because the party involved drinking, it was reasonable to expect that the smell of alcohol could come from other sources.  The police officers, however, had not made any attempts to identify any other sources of the smell.  Because of these police errors, the young man's conviction has been reversed.

The New Jersey criminal defense lawyers at Helmer Paul Conley and Kasselman represent persons who have been charged with DUI, sex crimes, drug crimes, fraud, assault and other crimes across New Jersey.

 

 

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