defense inspection and analysis samples of the breath test
reagent ampoules used in the administration of the
breath tests. See also State v. Bryan, 133 N.J. Super. 369
(Law Div. 1974), cited with approval in State v. Teare,
133 N.J. Super. 338, 341 (App. Div. 1975). State v.
Serret, 198 N.J. Super. 21, 26-27 (App. Div. 1984), certif.
denied 101 N.J. 217 (1985) and State v. Marshall, 123
N.J. 1, 108-109 (1991), cert. denied, 507 U.S. 929
(1993), gave recognition to the holding in Trombetta, as
it discounted any requirement that the State is otherwise
required to save the breath sample of the defendant.
F. Refusals/Implied Consent
State v. Widmaier, 157 N.J. 475 (1999), adopted
another “bright line” rule. Under the “Implied Consent
Law,” N.J.S.A. 39:4-50.2, anything substantially short
of an unconditional, unequivocal assent to an officer’s
request that the arrested motorist take the Breathalyzer
test constitutes a refusal to do so. The test is objective and
does not consider whether or not the suspect intended to
refuse to take the test. The Court recommends that the
Director of DMV (1) revise the standard statement read
to DWI suspects to ensure that suspects understand that
an ambiguous or conditional answer to a request to
submit a Breathalyzer test will be deemed a refusal, and
(2) delete the three examples of conduct listed in the
supplement to the standard statement and instead
simply warn suspects that a summons will issue as a
consequence of a refusal to provide breath samples.
Adopting the test in Hudson v. United States, 522 U.S. 93
(1997), the Court found that the sanctions imposed
following a conviction for refusal under N.J.S.A. 39:4-
50.4a are penal for double jeopardy purposes, precluding
an appeal by the State from an acquittal on a refusal
charge. See also State v. Stever, 107 N.J. 543 (1987), cert.
denied 484 U.S. 954, 108 S.Ct. 348 (1987).
State v. Lucci, 310 N.J. Super. 58 (App. Div.), certif.
denied, 156 N.J. 386 (1998), reversed defendant’s
driving while intoxicated conviction but affirmed his
refusal to take the Breathalyzer tests conviction.
According to his neuropsychologist defendant, who had
hydrocephalus, a condition that caused swelling in the
brain, functioned in the borderline retarded range, and at
times had slurred speech and balance problems. When
stopped by the police while driving his car, defendant
also had bloodshot eyes and smelled of alcohol. However,
the Appellate Division rejected the reasoning of both the
municipal court and Superior Court judges that did not
accept the testimony of defendant’s neuropsychologist,
claiming that the factual underpinnings for those judicial
decisions were not supported by sufficient credible
evidence in the record. The lower courts placed too much
emphasis on defendant’s ability to hold steady
employment. Also, the municipal court judge did not
develop a competent record for the Appellate Division to
determine if defendant’s hydrocephalus had an effect on
him, and the smell of alcohol on defendant’s breath and
his bloodshot eyes when driving could have been caused
by factors other than alcohol. The court affirmed
defendant’s refusal to take the Breathalyzer tests
conviction, concluding that he was informed of the
consequences of a refusal and that a “confusion” defense
to this offense had no viability given his conduct on a
videotape of his processing at the police station.State v. Liberatore, 293 N.J. Super. 580 (Law Div.
1995), aff’d o.b., 293 N.J. Super. 535 (App. Div. 1996),
affirmed DWI and refusal convictions based upon the
testimony of the arresting officer and the court’s review of
the in-station video tape. While in the station the
defendant exhibited an intoxicated state. Also, after
having been read the standard refusal statement, the
defendant initially remained silent, then upon being read
the additional paragraph, he flatly refused to submit to
testing. All of these facts clearly supported a finding of
guilty on the refusal as well as the DWI. The refusal need
only be established by the preponderance of the evidence
standard, which was met in this case. The elements to
prove the DWI were more than satisfied from the
observations of the officer and the court’s review of the
videotape.State v. Bernhardt, 245 N.J. Super. 210 (App. Div.
1991), certif. denied 123 N.J. 323 (1991), held that once
a defendant has refused to submit to breath testing, the
defendant cannot thereafter “cure” the refusal by
agreeing to take the test. Moreover, to the extent that
State v. Ginnetti, 232 N.J. Super. 378 (Law Div. 1989),
“may be interpreted as permitting a cure, we disapprove.”
Refusal is judged by a bright line rule, either the
defendant submits to the tests or he does not. See State
v. Corrado, 184 N.J. Super. 561, 567, 569 (App. Div.
1982). Encompassed within the bright line rule is also
silence which the Court determined, under State v.
Sherwin, 236 N.J. Super. 510, 515 (App. Div. 1989), as
a refusal. Permitting a cure hampers the State in the
administration of its public policy of requiring the courts
to work in tandem with the Legislature ‘to streamline the
implementation’ of laws designed to rid the highways of
drunken drivers. In as much as the implied consent is
viewed as a remedial statute, once the violation of refusal
in complete it cannot be undone by a cure. The court
further reiterated that the elements of the violation of
refusal are (1) that the arresting officer has probable cause