Blowing into a breathalyzer weakly is grounds to convict someone of the crime of refusal, according to a May 26 decision by the New Jersey Supreme Court. Refusal carries penalties nearly as severe as a conviction for driving under the influence of alcohol (DUI). On November 29, 2007 at 2:36am, Sergeant Joe Morgan of the Woolwich Township police department pulled over Aaron P. Schmidt after noticing that he was driving 10 MPH under the speed limit. Morgan administered the usual field sobriety tests and decided to bring Schmidt to headquarters for a breath test.

Schmidt agreed to submit, and another officer told him to "take a deep breath and blow into the mouth piece with one long continuous breath" until he was told to stop. The officer was unsatisfied with Schmidt's blowing. In a second attempt, Schmidt blew for 4.9 seconds -- sufficiently long -- but the Alcotest machine only registered 1.2 liters of air. After a third attempt failed, Schmidt was charged with refusal.

The municipal court and the law division each found Schmidt guilty, but an appellate division panel found that police had violated proper procedures by failing to read an additional warning statement specially prepared for cases where a person attempts to assert his constitutional right to remain silent, seek an attorney or provide an ambiguous response.

"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," the additional statement reads. "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 refusing 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."

The state supreme court found it unnecessary to read this additional warning because Schmidt's verbal assent to be tested was unambiguous.

"Once that consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant's unilateral actions aimed at defeating the testing process," Justice Roberto Rivera-Soto wrote for the majority. "To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme."

Although the court found the standard warning was sufficient, the justices decided that a specific notice regarding blowing weakly into the machine should be added.

"For the avoidance of future doubt and to provide consistency of administration, the inclusion in the main body of the standard statement of a notice to a DWI arrestee that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test is both reasonable and salutary," Rivera-Soto wrote.

The court reinstated Schmidt's conviction. A copy of the case is available at the source link below.