DWI Appeal - NJ Test Refusal Doesn't Require Proof of Machine Accuracy

In State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.) the defendant appealed his conviction for a test refusal, alleging amongst other things that there was no evidence that the breathalyzer test that he refused was reliable or admissible. Specifically he alleged:

"THE CANADIAN AMPOULE TESTING CERTIFICATES ARE NOT SELF–AUTHENTICATING, AND THE STATE CANNOT MEET ITS BURDEN OF ESTABLISHING THE SCIENTIFIC RELIABILITY OF THE BREATHALYZER, THEREFORE, MR. BURNS CANNOT BE CHARGED WITH REFUSAL."

The appeals court first cited to an earlier case, In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981), where the defendant asserted that the State must prove that a qualified operator of the breathalyzer was available at the time of the test request. "We disagreed, holding that such a requirement would infer a prerequisite to suspension in addition to those specified in the refusal statute."


The court then rejected the defendant's position that the State must 'prove-up' the admissibility, accuracy, or reliability of the test that the defendant had refused.



EDITORS COMMENT: What if the driver could prove that the test that was requested by the police was in fact inadmissible? For example, what if a driver was asked to blow into an indisputably unapproved device? Would the outcome be different?



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