A driver who agrees to provide breath samples for a DWI breathalyzer must then comply or he may be convicted of Refusal to provide an adequate breath sample under NJSA 39:4-50.4(a)

In State v. Schmidt, the Supreme Court of New Jersey examined the effect of a defendant driver who agrees to take a breathalyzer test after an arrest for DWI but later refuses or inexplicably fails to produce enough breath to trigger an accurate test. The facts of the case reveal that the defendant driver, (‘driver’) was seen by the police swerving and driving carelessly. He was arrested and removed to police headquarters. There, the police read him a standard statement before they administered the breathalyzer test. Then, after he agreed orally to take the breathalyzer test, he provided ‘short breaths’ or breaths that were too short in length and/or intensity to cause a valid result on the machine. See, State v. Schmidt.

Defendant contended that once the police officer determined to charge him with the refusal (to take the test), the police should have read the Additional Statement which may be required if the person’s response to the advisement is unclear or there is reason to believe misunderstood.

The Supreme Court reversed the Appellate Division’s holding and sent the case back to the municipal court to sentence the defendant driver. The Supreme Court, in Schmidt, held that the Standard Statement, pursuant toN.J.S.A. § 39:4-50.2(e), explains, among other things, why a defendant has been arrested; that the law requires that the defendant provide sufficient breath samples; and that if the defendant refuses to provide the adequate samples, he will be charged with a separate Title 39 offense for the ‘refusal.’ Also, and crucially, the Schmidt Court stated that the standard statement clearly states that any ambiguous or conditional response also will be treated as a refusal and the police officer administering the test must then read an additional statement to the defendant that, again, the defendant driver must, by law, provide appropriate breath samples. See, State v. Schmidt.

The Court, in Schmidt, reversed and upheld the conviction for Refusal because defendant consented to provide the breath samples and then inexplicably failed to offer adequate samples. The Court held that ‘…once that consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant’s unilateral actions aimed at defeating the testing process.’ See, State v. Schmidt.

Hence, the Supreme Court held that the case did not involve an ambiguous consent but a valid consent followed by an obstinate ‘refusal’ to comply. Thus the Court said that was enough and the conviction for refusal was warranted even without the police officer’s advisement to the defendant of the Additional statement.

To hold otherwise, the Supreme Court stated, ‘…..would violate the clear purpose of the entire intoxicated driver statutory scheme which is that a defendant’s unexplained and repeated failure to provide the necessary breath amounts to produce valid test results is no different than the acts of another who intentionally seeks to skew the test results…’ by some other means. See, State v. Schmidt.