Saturday, January 5, 2013
Drivers Can Be Charged With Multiple Refusals as a Result of a Single Event in NJ
In State v. Nunnally, 420 N.J. Super. 58 (App. Div 2011), a defendant in was charged with refusal to submit to a breath test under the DUI statute but not under the CDL statute. When the officers were alter unable to prove that the driver was under the influence, they attempted to charge the defendant with refusal to submit to a breath test under the CDL statute. The Bergen County court addressed the matter and concluded that CDL refusal is not a lesser included offense of a general DUI refusal because each requires proof of a different set of facts and the Appellate Division affirmed. The CDL refusal statute requires proof the arresting officer had probable cause to believe the person had been operating or was in actual physical control of a commercial motor vehicle on the public highways or quasi-public area with a blood alcohol concentration (BAC) of .04% or greater. This differs from the general DUI statute which requires proof the driver is under the influence of intoxicants rather than simply having a BAC of .04% or greater. As a result of the officers failure to charge him with CDL refusal within 90 days of the incident Nunnally was only held to account for the general DUI charge. Although Nunnally escaped prosecution under the CDL refusal statute, it is an uncommon event that officers would not bring complaints for all significant charges against a driver, including the often minor issues which gave rise to probable cause in the matter. Penalties for DWI are severe, including jail, loss of license, significant fines, court ordered counseling for drugs and alcohol as well as installation of ignition interlock devices. Interlock devices are expensive to install and require payment of monthly fees, as well as visits to certified inspectors to insure proper operation of the device during the install period. If you are charged with a DUI, you should seek experienced defense counsel immediately to protect your rights. For more information on DUI, driving while intoxicated, refusal to submit to an Alcotest (formerly Breathylizer), CDL refusal, CDS in a motor vehicle or other serious driving related charges visit HeatherDarlingLawyer.com.