609-566-9686Today, in State v. Pedro Peralta, A-5761-12 (Decided October 31, 2014), the New Jersey Appellate Division issued a published opinion upholding the conviction for Driving under the Influence (DUI), when the police failed to read the required statutory warnings. This decision rejected a prior contrary decision.
The three-judge panel upheld the defendant’s conviction for a DUI based on the results of the breathalyzer, with no showing that the police read the required warnings. During the DUI trial, the state did not present any evidence that the police read the required warnings about refusing to provide a breath sample and the defendant did not testify. The police are required to read the New Jersey Attorney General’s Standard Statement for Motor Vehicle Operators to an arrested driver. After the police read this statement, cases have decided that a driver can be charged with a refusal if they provide any response other than an unambiguous “yes” to the request for a breath sample.
Today’s decision rejected an unpublished four-year-old ruling to the contrary. The Appellate Division refused to name the prior unpublished case, but rejected the conclusion from the 2010 case of State v. Tirado. In Tirado, the Court had ruled that, even when a suspected drunken driver did consent to give a breath test, the judge should reject the readings if the state could not prove that the driver had been read the required statutory statement. The court had stressed the requirement that the police adhere to the required protocols.
In contrast, the panel in Peralta found that the failure to adhere to the protocols was irrelevant. “[A]n officer’s failure to read the statutory statement is irrelevant when the accused submits to the test,” wrote the Court. The Peralta court decided that the refusal warning was not required if the driver provided a breath sample and the failure to provide the warning did not affect the admissibility of the results.
A defense in New Jersey courts to a DUI or refusal has been a showing that the officer who processed the arrested driver did not read the required “implied consent form” correctly. This new decision eliminates that defense for New Jersey DUI charges.
