to believe that the accused operated a vehicle while under
the influence of alcohol, (2) an arrest of the accused for
driving while under the influence of alcohol, and (3) the
accused’s refusal to submit to a chemical breath test.
In State v. Todaro, 242 N.J. Super. 177 (App. Div.
1990), defendant challenged the constitutionality of the
implied consent statute, N.J.S.A. 39:4-50.4a, claiming
that a conviction supported only by a preponderance of
the evidence standard was a constitutional violation. The
Appellate Division disagreed, noting that it is well settled
in New Jersey that drunk driving is a quasi-criminal
offense requiring a beyond a reasonable doubt standard of
proof as to each element of the offense. A Breathalyzer
refusal hearing has always been treated as a civil matter;
the standard of proof in such a proceeding is a
preponderance of the evidence. The purpose of the
refusal statute is to encourage drivers to submit to breath
testing, not to punish them.
State v. Sherwin, 236 N.J. Super. 510 (App. Div.
1989), held that a defendant’s silence in response to
having been read the standard refusal statement, under
the implied consent law, was in fact a refusal to submit to
chemical breath testing. The court also determined that
the defendant failed to prove his claim of confusion upon
having been read both a Miranda warning and the
standard refusal statement.
G. Roadblocks/Sobriety Checkpoints
In Michigan Dept. of State Police v. Sitz, 496 U.S. 444,
110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the U.S.
Supreme Court reviewed a checkpoint operated by the
Michigan State Police and reversed the Michigan
Supreme Court finding that under a three point
balancing test, (1) state interest, (2) effectiveness of
checkpoints, and (3) level of intrusion on individuals, the
checkpoint could pass constitutional muster. The Court
found that checkpoints are a Fourth Amendment seizure
and then evaluated the checkpoint under that standard
and the balance test. The Court found there was a clear
public interest because of the magnitude of the problem
of DWI drivers. The measure of the level of intrusion was
no different that the brief border search stops based upon
well established guidelines. The checkpoint is not a
random stop because it is planned and organized. The
Court also found that the State Supreme Court’s
determination of the effectiveness was a violation of the
separation of powers in that it intruded on the decision
making authority of the executive branch on its allocation
and use of resources.
State v. Barcia, 235 N.J. Super. 311 (App. Div.
1989), affirmed the Law Division suppression of drug
evidence seized in a checkpoint at the George
Washington Bridge entrance to New Jersey on the
grounds the checkpoint was a Fourth Amendment
violation under the federal and N.J. Constitutions, but
found the trial court was in error in applying a
constitutional right to travel & commerce clause analysis.
The significant factor in this checkpoint was the fact that
the checkpoint was an organized and planned event with
supervision, but that time, location and operation was
such that it was unreasonable and became arbitrarily and
oppressive on motorists resulting in traffic backlogs into
two other States.In State v. DeCamera, 237 N.J. Super. 380 (App. Div.
1989), the Appellate Division found that a checkpoint
set up by police without an advance notification in a
newspaper did not violate the defendant’s Fourth
Amendment rights. The Court declined to expand upon
the requirements otherwise established under the
holding in State v. Kirk, 202 N.J. Super. 28 (App. Div.
1985).State v. Hester, 245 N.J. Super. 75 (App. Div. 1990),
reversed a trial court’s suppression order, noting that a
motorist is not required to be accorded an opportunity to
avoid an otherwise legally established checkpoint. The
motorist had observed the checkpoint and made an
otherwise lawful U-turn before encountering the
checkpoint. The U-turn was the only basis upon which
the motorist was stopped, and the Court found there was
a sufficient basis for the stop. The court rejected the claim
that a motorist has a constitutional right to avoid a
checkpoint.State v. Mazurek, 237 N.J. Super. 231 (App Div.
1989), certif. denied 121 N.J. 623 (1990), affirmed the
DWI conviction of defendant as a result of a stop at a
checkpoint. Defendant challenged the effectiveness of
the use of checkpoints, but the court, relying on U.S. v.
Martinez-Fuerte, 428 U.S. 543, 556-8, 96 S.Ct. 3074,
3082-3, 47 L.Ed.2d 1116 (1976), found that success can
not be measured solely by numbers of arrests. Because
this checkpoint otherwise complied with the require-
ments set forth in Kirk, it passed constitutional muster
under the federal and State Constitutions.State v. Moskal, 246 N.J. Super. 12 (App. Div. 1991),
rejected a claim that a review of the statistical results of a
checkpoint was sufficient for a court to suppress the stop,
citing Mazurek. The court further found that the
selection of a checkpoint location does not have to be