Advisement of “Independent Test” not an Element of DWI – State v. Howard

New Jersey law provides that a person arrested for drunk driving who is required to submit a breath sample, be informed by the police that he or she has the right to seek an independent testing of breath, blood or urine by a physician or other person. In today’s Appellate Division decision, State v. Howard, the Court ruled that the State is not required to affirmatively prove that the defendant was advised of the right to independent testing in order to sustain a conviction for DWI under NJSA 39:4-50(a). Rather, a challenge based upon a failure to provide this statutory advisement must be raised in a motion to suppress the breath test results. It is only when such a pre-trial challenge is raised that the State must prove that the proper statutory advisement was given to the defendant.

Download a copy of State v. Howard.

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