- Extrapolation
In Tischio, 107 N.J. 504, the Supreme Court
determined that expert testimony to extrapolate a breath
test reading back to the time of operation of the vehicle
was inadmissible and that such testimony would not be
received. As long as a breath test is administered within
a reasonable period of time after the arrest for operating
a motor vehicle while intoxicated, then the breath test
result is admissible to establish a per se violation. The
court also specifically disapproved of the holding in State
v. Allan, 283 N.J. Super. 622 (Law Div. 1995). But see,
State v. Oriole, 243 N.J. Super. 688 (Law Div. 1990),
holding extrapolation evidence admissible in prosecution
for aggravated assault arising from auto accident.
C. Constitutional Rights
Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138,
82 L.Ed.2d 317 (1984), held a person subjected to
custodial interrogation is entitled to the benefit of the
procedural safeguards enunicated in Miranda v. Arizona,
384 U.S. 436 (1966), regardless of the nature or severity
of the offense for which he is suspected or for which he is
arrested. The roadside questioning of a motorist
temporarily detained pursuant to a routine traffic stop
does not constitute custodial interrogation for the
purposes of the Miranda rule.
State v. Macuk, 57 N.J. 1 (1970), was overruled by
State v. Stever, 107 N.J. 543, 559, n.15, cert. denied 484
U.S. 954 (1987), as it applies to the requirement that a
defendant in a DWI matter must be read a Miranda
warning upon arrest, consistent with the holding in
Berkemer.
- Retroactivity (See also, RETROACTIVITY, this
Digest) - Effect
State v. Stever, 107 N.J. 543 (1987), cert. denied 484
U.S. 954 , 108 S.Ct. 348 (1987), held analysis of a breath
sample is not a “critical stage” at which the motorist has
a right to consult with counsel and Berkemer v. McCarty,
468 U.S. 420 (1984), is inapplicable. It is not necessary
to give warnings prior to asking a suspect to submit to a
blood alcohol test because a request of this nature does
not constitute “interrogation” for purposes of Miranda v.
Arizona, 384 U.S. 436 (1966). See South Dakota v.
Neville, 459 U.S. 553, 564 n.15 (1983).
State v. Chappee, 211 N.J. Super. 321 (App. Div.
1986) certif. denied 107 N.J. 45 (1986), habeas granted
o.g. (DNJ 1988), cert. denied, 493 U.S. 873 (1989), held
that police action of confronting individuals stopped for
speeding with marijuana roach found on front seat of
automobile was not the functional equivalent of express
questioning so as to require Miranda warnings.In State v. DeLorenzo, 210 N.J. Super. 100 (App. Div.
1986), taking of breath sample from a motorist suspected
of drunken driving did not constitute interrogation and
Miranda warnings are not required.In State v. Green, 209 N.J. Super. 347 (App. Div.
1986), field sobriety testing did not constitute custodial
interrogation and hence did not require Miranda
warnings prior to conducting the testing. The operator
of a motor vehicle arrested for drunken driving did not
have a right to contact an attorney before undergoing
Breathalyzer testing.State v. Leavitt, 107 N.J. 534 (1987), held a motorist
requested to furnish a breath or blood sample is not
guaranteed the Sixth Amendment’s assistance of counsel
at that stage of the proceeding. Furthermore, no
provision of the New Jersey Constitution or statutes
furnishes such a guarantee. Consequently, it is
appropriate to advise a suspect that he has no right to
refuse to give a breath sample on the ground that he has
not been afforded counsel. Without resolving the issue of
whether a defendant may validly assert a “confusion
defense” to justify his refusal to submit to Breathalyzer
testing, the Supreme Court decided that any potential
assertion of this defense must be premised on a record
developed by a defendant to show confusion in fact.
Defendant would bear the burden of persuasion if he
wishes to establish a confusion claim.State v. Nece, 206 N.J. Super. 118 (Law Div. 1985),
held the Sixth Amendment right to counsel was not
available to an individual arrested for drunken driving
with respect to the compelled exhibition of the arrestee’s
bodily movements.State v. Hammond, 118 N.J. 306, 307 (1990), held
that motor vehicle violations are not offenses under the
Code of Criminal Justice, and hence the Code’s
provisions, including the involuntary intoxication
defense, do not apply to a defendant charged with DWI.State v. Davis, 244 N.J. Super. 180 (App. Div. 1990),
found that the reporting requirements of N.J.S.A. 2C:17-
6b, under the Law Division’s application of the