Muni-mail – “I’ll take the test” + No Samples = REFUSAL – State v. Schmidt
[05/26/11 – 11:58 pm] In this morning’s Supreme Court decision in State v. Schmidt, the Justices ruled that once a person gives his initial consent to providing a breath sample, no further action by the police is necessary to provide additional warnings to him in the event he does not provide adequate breath samples. InSchmidt, the police arrested for drunk driving and, prior to administering a breath test, read him the first portion of the standard statement required under NJSA 39:4-50.2(e) (aka paragraph 36). The defendant consented to taking a breath test, but thereafter was either unwilling or unable to provide adequate breath samples. The defendant claimed on appeal that the police should have read him the second portion of paragraph 36 before charging him with the refusal offense. However, the Court held that once the defendant consented to taking the test, no other warnings were required. The Court went on to advise the attorney general that it might be a good idea to amend the first part of paragraph 36 to include language instructing defendants that the failure to provide an adequate breath sample will be considered a refusal to submit to a breath test.
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