Breath Test Refusal Conviction Reversed on Appeal: How We Won and Set Up a Powerful New Defense for Body Camera Shutoffs

Key Takeaways:

• Our client was charged with DWI and refusal to submit to a breath test under N.J.S.A. 39:4-50.2. We were able to get them both dismissed.
• The DWI was DISMISSED at trial, and the refusal was DISMISSED on appeal.
• The State produced three different official records of what our client supposedly said when asked to take the breath test. The Court ruled that inconsistent records cannot prove a refusal beyond a reasonable doubt.
• The trooper turned off his body worn camera (BWC) before reading the refusal warnings to our client without narrating why.  The Court ruled that conduct violated the Attorney General Guidelines on BWCs and our client was entitled to an adverse inference that the missing footage would have helped the defense.
• We now have a Superior Court decision for a defense our office has been presenting for years that we can now use to help future clients.

A Refusal Conviction Is Not the End of the Road

In New Jersey, a conviction for refusing to submit to a breath test carries penalties that rival a DWI.  They include fines, an ignition interlock device, mandatory Intoxicated Driver Resource Center (IDRC) classes, and a driving record that never goes away. Many drivers assume that once a municipal court judge enters a guilty finding, the fight is over.

It is not. Nathan Mammarella, the firm’s Head of DWI/DUI & Municipal Court Litigation, recently proved that point in dramatic fashion: Nathan secured an ACQUITTAL of the underlying DWI charge at trial, and when our client was nonetheless convicted of refusal, he APPEALED to the Superior Court and won an outright acquittal of that charge as well. Along the way, Nathan and the rest of the Municipal Court Litigation team a Rosenberg Perry & Associates obtained a written decision recognizing a defense argument we have been making for years: that when police shut off a body worn camera at the wrong moment, the defendant gets the benefit of the doubt.

What Our Client Was Facing

Our client was stopped after a state trooper found his truck parked at a scenic overlook in the early morning hours. The trooper reported the smell of alcohol, observed signs he associated with impairment, and ultimately arrested our client and transported him to the barracks for breath testing. Our client was charged with driving while intoxicated under N.J.S.A. 39:4-50, refusal to submit to a chemical breath test under N.J.S.A. 39:4-50.2, possession of an open container under N.J.S.A. 39:4-51b, and failure to observe a traffic control device under N.J.S.A. 39:4-81.

The exposure was serious. A first offense DUI carries with it up to 30 days in jail, 90 days of the ignition interlock device, along with 12 hours at the IDRC, approximately $750 in total fines and $3,000 in Motor Vehicle Surcharges over the next three years.  A first offense refusal conviction in New Jersey carries with it similar penalties, but the interlock device requirement is between 9 and 15 months.  Meaning, a conviction for both would be up to 12-18 months of interlock along with over $1,500 in fines and over $6,000 in Motor Vehicle Surcharges over the next three years.

Had this been a second offense for either the DWI or the refusal, the penalties increase. The DWI would increase to between 2-90 days in Jail with a 1-2 year loss of license plus 2-4 years of interlock. The refusal would also carry a 1-2 year loss of license and 2-4 year interlock requirement.

Step One: Winning the DWI at Trial

At trial in municipal court, Nathan forced the State to prove its case rather than assume it. The result was an NOT GUILTY/AQUITTAL of the DWI charge by directed verdict.  The State agreed it could not prove the N.J.S.A. 39:4-50 charge. That alone is a significant win, because a DWI conviction carries license consequences and insurance surcharges that reshape a person’s life.

The municipal court, however, still convicted our client of refusal. That set up the second phase of the fight.

Step Two: Winning the Refusal Charge on Appeal

A municipal appeal in New Jersey is not a simple do-over. Under Rule 3:23-8(a), the Superior Court conducts a trial de novo on the record. That means that the Superior court reviews the municipal court transcript and exhibits and makes its own independent findings of fact and conclusions of law, while giving due regard to the municipal judge’s credibility determinations under State v. Johnson, 42 N.J. 146 (1964).

To convict on refusal, the State must prove four elements beyond a reasonable doubt under State v. Marquez, 202 N.J. 485 (2010):

1. probable cause to believe the driver was operating under the influence;
2. a lawful arrest;
3. that the officer requested the breath test and read the consequences of refusing; and
4. that the driver actually refused.

The fourth element, the refusal itself, was where the State’s case fell apart.

Three Records, Three Different Answers

Nathan and the litigation team showed the court that the State had created three separate official documents memorializing our client’s response to the Attorney General’s Standard Statement, and they did not match. The Drinking Driving Report said our client stated, “I plead the Fifth.” The handwritten Standard Statement recorded “no.” The computer-generated version recorded “yes.” Under New Jersey law, only an unequivocal “no” constitutes a refusal, and an unequivocal “yes” is not a refusal at all.

The Superior Court agreed that these contradictions made it impossible to determine what our client actually said. As the court put it, it was “left with inconsistent responses,” and as a result “the State cannot prove beyond a reasonable doubt that Appellant refused to consent to the test.” Proof beyond a reasonable doubt under State v. Cummings, 184 N.J. 84 (2005) is the legal standard for refusal, and the State did not meet it. Our client was found NOT GUILTY and ACQUITTED of the refusal.

The Bigger Win: An Adverse Inference for Turning Off the Body Camera

Here is the part of this decision that will help drivers across New Jersey for years to come.

The trooper turned off his body worn camera at the barracks.  It stayed off through the very moment the refusal warnings were read and our client responded. The State argued the shutoff was proper because the Attorney General’s Body Worn Camera Directive allows deactivation around the Alcotest instrument to prevent radio-frequency interference.

But that directive, together with N.J.S.A. 40A:14-118.5, comes with conditions. The officer must narrate the reason for deactivating the camera on the recording. Something like, “I am deactivating because the suspect is about to take a breath test.” See Attorney General Body Worn Camera Directive No. 2022-1, Section 6.3, p. 15. That did not happen here. Furthermore, there was no exception allowing the Troopers to turn the Body Worn Camera off during the refusal. The camera went dark with no explanation, and the warnings were read while it was off, even though they could have been read moments earlier while it was still recording.

The Superior Court held that this unjustified deactivation triggered the rebuttable presumption under N.J.S.A. 40A:14-118.5(q)(2).  That is a presumption “that exculpatory evidence was destroyed or not captured in favor of a criminal defendant who reasonably asserts” as much. In other words, our client was entitled to an adverse inference that the missing footage would have helped his defense. And because the State’s three records were hopelessly inconsistent, the State could not overcome that presumption. The refusal conviction was REVERSED.

This reflects an argument our firm has advanced for years: when the camera is off during the decisive moment, the written records alone may not be enough, and the gap should not work against the defendant. Now we have a written Superior Court decision applying that principle to a breath test refusal.  This is a decision we can put in front of judges and prosecutors in future cases across the state.

Why Experience Matters in a Refusal Case

A refusal charge looks simple on paper, but winning one requires knowing exactly where the State’s procedures are vulnerable. A driver standing alone cannot cross-examine a trooper on the inconsistencies between three reports, cannot invoke the body worn camera statute and the Attorney General directive by section and subsection, and cannot frame a municipal appeal so the Superior Court reviews the record de novo and reaches its own conclusions.

That is what we do. We read the discovery line by line, we know the Alcotest and refusal procedures cold, and we understand that a case is often won on a single missing narration on a body camera or a contradiction buried in a report. We fought this case at trial, we fought it again on appeal, and we built a precedent our future clients will benefit from. When the stakes are your license and your record, that depth of preparation is the difference.

Questions about DWI and Refusal in New Jersey

If you have been charged with DWI or refusal to submit to a breath test in New Jersey, do not assume the outcome is decided. Nathan Mammarella, along with the entire firm, fights these cases at trial and on appeal, and we know how to turn the State’s procedural mistakes into reasonable doubt. Contact Rosenberg Perry and Associates for a consultation. Call or text us at (609) 507-4586 or visit us at rosenbergperry.com.

We have your back. That’s what we do.

Frequently Asked Questions

Can you appeal a breath test refusal conviction in New Jersey?

Yes. A conviction in municipal court can be appealed to the Superior Court, Law Division, under Rule 3:23-8(a). The Superior Court conducts a trial de novo on the municipal court record, makes its own findings, and can reverse the conviction.

What does the State have to prove to convict you of refusal?

Under N.J.S.A. 39:4-50.2 and State v. Marquez, the State must prove four things beyond a reasonable doubt: probable cause that you were driving under the influence, a lawful arrest, that the officer read you the standard statement and the consequences of refusing, and that you actually refused. Anything short of an unequivocal “no” can potentially defeat the refusal element.

Does it matter if the police turn off their body camera?

It can matter a great deal. Under N.J.S.A. 40A:14-118.5 and the Attorney General’s Body Worn Camera Directive No. 2022-1, an officer who deactivates a camera around breath testing must narrate the reason on the recording. When an officer turns the camera off at a critical moment without justification, a defendant may be entitled to an adverse inference that the missing footage would have been favorable to the defense.

Is refusal as serious as a DWI in New Jersey?

In many respects, yes. A first refusal conviction can carry significant fines, $1,000/year surcharge for three years, mandatory IDRC classes, and mandatory installation of the ignition interlock device.  Similar to DWI, a conviction cannot be expunged from your motor vehicle abstract.  The most significant difference in penalties is that a third offense DWI has a mandatory 180 days in jail, while a third offense refusal does not.

Should I just plead guilty to get it (DWI or refusal) over with?

No.  No, no, no, no, no! Not before talking to a lawyer. As our client’s case shows, charges that look like sure convictions can be dismissed at trial or reversed on appeal once the State is held to its burden and its procedures are scrutinized. And even when a case cannot be dismissed outright, there are often issues that can be raised to reduce the penalties you face.

Here is a video of Nathan Mammarella explaining the Breath Sample: