The Jersey Lawyer

In State v. Kim, the defendant’s conviction for refusal to submit breath samples following his arrest for driving while intoxicated was affirmed by the Appellate Division, in spite of the fact that the defendant may not have understood the standard statement read to suspects charged with driving while intoxicated.  This Appellate Division case comes just after the New Jersey Supreme Court granted certification in the matter of State v. Marquez, which means that the Supreme Court is going to be conclusively deciding this very same issue.

In this case, the defendant was charged with refusing to submit breath samples after being arrested for driving while intoxicated under N.J.S. 39:4-50.2 and N.J.S. 39:4-50.4a.   The defendant in this case was observed by a police officer urinating on a tree while his car was parked in a parking lot, with the engine running and the driver’s side door open.  The officer smelled alcohol on the defendant and asked him to run through a variety of field sobriety tests.

At the police station, the defendant was read his Miranda rights and the standard statement regarding refusal as required by N.J.S. 39:4-50.2e.  In his letter of appearance, defense counsel represented that defendant would move to suppress evidence that was seized unlawfully, without a warrant.  During an evidentiary hearing on whether the arresting officer had probable cause for the arrest, defense counsel raised the issue that defendant did not speak English and therefore did not understand the refusal warning.  Defense counsel did not make a formal motion to address the issue.  At trial, the refusal to submit to a breath test was found to have been knowing, and defendant was convicted of that charge.

The Appellate Division held that proof beyond a reasonable doubt that a suspect arrested for DWI understands the standard refusal statement is not required for a refusal conviction.  According to the Appellate Division, it would be an undue burden on the State to require the State to read the standard refusal statement in every language that a potential DWI suspect might speak.

The Appellate Division also held that there was a procedural bar to the defendant’s argument.  According to the Appellate Division, defendants who seek to exclude evidence on constitutional grounds are required to file a formal motion to suppress the evidence in accordance with Rule 7:5-2.  Further, the defendant must show that there are material facts in dispute in order to be entitled to an evidentiary hearing.

This decision is important because the Appellate Division seems to be indicating that defendants must now file a formal motion whenever they want to move to exclude evidence at trial on constitutional grounds.  This has not been the practice in municipal court, and formal motions to suppress have been reserved for cases involving search and seizure issues.  Based on this decision, a New Jersey DWI lawyer should file a formal motion, on notice to the county prosecutor as required by Rule 7:5-2, in every case where he seeks to exclude evidence on constitutional grounds.