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Mr. Tumelty represented Helena Hendricks, who was charged with first degree murder in Atlantic County Superior Court. The defendant faced a number of additional charges, including armed robbery, conspiracy and possession of a handgun for an unlawful purpose. At the conclusion of a jury trial that lasted three weeks, the defendant was found "not guilty" of all charges.

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Third time not a charm for New Jersey breath test refusal

As Cape May readers may know, New Jersey law requires any person arrested under suspicion of drunk driving to submit to a breath test for blood alcohol level. Many people, however, do not realize that a breath test refusal can result in penalties just as severe as those attached to a conviction for drunk driving.

In the early hours of December 22, a Bayonne man was arrested after refusing three times to submit to a breath test. According to reports, police witnessed the man swerve into another lane and observed bloodshot eyes and an odor of alcohol after pulling him over. Police reports characterized the man as “unsteady” during field sobriety tests. He allegedly refused to submit to a breath test on the scene and was transported to the police station where he refused a breath test two more times.

A conviction on a first offense charge of breath test refusal comes with a seven month license suspension and a mandatory requirement to install an ignition interlock device. Combined with hefty fines and surcharges, state law aims to punish refusals to the same degree as proven drunk driving.

Nonetheless, an arrest for breath test refusal does not necessarily justify a conviction for the offense. New Jersey law still requires police officers to give a suspected drunk driver certain information intended to help citizens understand and exercise their civil rights.

In addition to a showing of probable cause necessary to justify an initial stop, police must read a standardized statement that informs the suspected drunk driver of the full range of consequences associated with test refusal. Failure to follow that procedure may provide a defense to a breath test refusal charge.

In addition, the nature of conduct that amounts to a refusal remains a bit of a gray area. Any response to a breath test demand other than a clearly stated refusal may call into question whether the conduct meets the legal definition of refusal. The particular circumstances of any given arrest may provide the basis for an effective defense in the hands of a skilled DWI attorney.

Source:, “DWI suspect refuses breathalyzer three times in Bayonne, police say,” Dec. 27, 2012

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