New Jersey-2010-A3400-Introduced

An Act concerning the offense of refusing to submit to a chemical test in cases involving driving under the influence and amending P.L.1966, c.142 and P.L.1981, c.512.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1966, c.142 (C.39:4-50.2) is amended to read as follows:

2. (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).

(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. [The] For the purpose of encouraging compliance with the requirement that the person submit to a chemical test, the police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of [this amendatory and supplementary act] P.L.1981, c.512 (C.39:4-50.4a). A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.

The provisions of this section shall not be deemed to provide any substantive rights to a person charged with a violation of section 2 of P.L.1981, c.512 (C.39:4-50.4a). The provisions of this section shall not be deemed to constitute an element of the offense set forth in section 2 of P.L.1981, c.512 (C.39:4-50.4a), or be construed in any manner as a prerequisite to establish a violation of section 2 of P.L.1981, c.512 (C.39:4-50.4a). Failure of the arresting police officer to inform the person under arrest of the consequences of refusing to submit to a chemical test or read to that person the standard statement prepared by the chief administrator shall not be a defense to a charge of violating section 2 of P.L.1981, c.512 (C.39:4-50.4a).

(cf: P.L.2007, c.267, s.1)

2. Section 2 of P.L.1981, c.512 (C.39:4-50.4a) is amended to read as follows:

2. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.

The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. It shall not be a defense to a charge of violating this section that the defendant was unaware of the consequences of refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2). In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense. The person also shall be required to install an ignition interlock device pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).

b. For a first offense, the fine imposed upon the convicted person shall be not less than $600 or more than $1,000 and the period of license suspension shall be not less than one year or more than two years; for a second offense, a fine of not less than $1,000 or more than $2,000 and a license suspension for a period of four years; and for a third or subsequent offense, a fine of $2,000 and a license suspension for a period of 20 years when a violation of this section occurs while:

(1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.

It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

(cf: P.L.2009, c.201, s.5)

3. This act shall take effect immediately.

STATEMENT

This bill is intended to clarify the Legislature's intent regarding the offense of refusing to submit to a breath test, in response to the decision of the Supreme Court of New Jersey in State v. Marquez, decided July 12, 2010. The court held in that case that a provision of the implied consent statute (N.J.S.39:4-50.2), that requires police to inform motorists of the consequences of refusing to submit to a chemical test, such as a breath test, was an element of the refusal offense (N.J.S.39:4-50.4a). This bill is intended to make clear that the interpretation of the statutes set forth in Marquez is incorrect. In amending the implied consent law to require the police to inform motorists of the consequences of refusal to submit to the test, the Legislature did not intend to make that provision another element of the refusal offense that would be in addition to the three elements of the offense specified in N.J.S.39:4-50.4a.

New Jersey's implied consent law states that all motorists consent to the taking of samples of their breath when requested by police for the purpose of making chemical tests to determine the content of alcohol in their blood. The portion of this statute that requires the police to inform motorists of the consequences of refusal to submit to the test was intended only to encourage compliance with the implied consent statute in order to promote effective enforcement of our State's drunk driving laws, not to create a new element of the refusal offense. This bill provides that it is not an element of the offense of refusing to submit to a test that the defendant be informed of the consequences of such a refusal, nor does the language requiring police to impart this information to a suspect create any substantive right or serve as a prerequisite to establishing a violation of the refusal offense. The bill also provides that the failure of the police to provide this information or read the standard prepared statement is not a defense to a refusal charge.