DUI Defense Argument Thrown Out By N.J. Appeals Court
Last week, a New Jersey man’s appeal for a driving under the influence of alcohol conviction, which was based on a technical argument whether a particular warning was given by a cop, was thrown out by a state appellate court.
The published opinion showed that Pedro Peralta had argued that his 2011 DUI arrest and conviction were not valid due to the reason that even though he gave a breath sample and failed a Breathalyzer test, he was never read a statutory warning describing the punishments for refusing the intoxication test.
The case was dismissed by the appellate judges and according to them, the statutory warning of punishments for refusal to give a sample for intoxication testing had no bearing on a driver who willingly took the test.
The judges wrote, “To be sure, the reading of the statutory statement is critical to a prosecution for refusing to give a sample. The statutory statement is inessential when consent is given”.
According to a Cherry-Hill based defense lawyer, Jeffrey Gold, the defense given by the unpublished 2010 decision called as State v. Tirado, was used by lawyers who knew case law well. He added that since the state statute said that the statement must be read during DUI investigations, not reading it meant the entire process can be invalidated.
Gold, who is chair of the municipal court section of the Association of Criminal Defense Lawyers in New Jersey said, “It was a relatively sophisticated defense”.
Gold added that a few specialized DUI lawyers used the defense successfully over the last few years but the latest decision throws out that method. “It changes things. It’s one more thing that’s been slapped down”.
Brian Schiller with the Scotch Plains firm Schiller-Pittenger said, “It doesn’t make sense, quite frankly. The decision definitely lets everyone know that this is clearly not a defense”.
The court gave the decision stating, “We agree with the Law Division judge that an officer’s failure to read the statutory statement is irrelevant when the accused submits to the test”.
News Source: www.Nj.com