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State v. Schmidt

July 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AARON P. SCHMIDT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-22-08.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 17, 2010

Before Judges Cuff, Payne and Waugh.

N.J.S.A. 39:4-50.2(a) provides that "[a]ny 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." Paragraph (e) of that statutory provision bars forcible sampling, but it further provides:

The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with [N.J.S.A. 39:4-50.4a]. A standard statement, prepared by the director, shall be read by the police officer to the person under arrest.

In accordance with the statutory directive, the Chief Administrator of the Motor Vehicle Commission has promulgated a Standard Statement, consisting of two parts. The first part presently is comprised of eleven paragraphs that inform the arrestee, among other things, of the basis for arrest, the requirement that the arrestee submit to breath sampling, that the right to remain silent and the right to consult with an attorney are not available in the circumstances, and the consequences of the arrestee's refusal to submit to a breath test. The text concludes with the following paragraph:

I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?

A space on the form is provided for the arrestee's response.

The second part of the form commences with "Additional Instructions for Police Officer":

If the person: remains silent; or states or otherwise indicates that he/she refuses to answer on the grounds that he/she has a right to remain silent, or wishes to consult an attorney, physician, or any other person, or if the response is ambiguous or conditional, in any respect whatsoever, then the police officer shall read the following additional statement: The form then continues:

I have previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with ...


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