Verdicts and Results

Refusing breathalyzer test: Confusion plea prevails

By Rocco Cammarere In a ruling that could affect thousands of drivers and open the door to untold challenges, a trial judge has allowed a driver to get away with refusing to take a breathalyzer test. The reason? The driver said she was confused.

She told Monmouth County Superior Court Judge Robert A.Coogan that she was confused about her right to be advised by an attorney or have counsel present during the breathalyzer test.

And Coogan last week became the first trial judge in a decade to rule that the long list of rights given by police to suspected drunken motorists can be confusing and warrants an acquittal.

The bottom line is that in some cases, that dazed and confused feeling can be enough to get an acquittal on a charge of refusing to take a breathalyzer test.

It's going to carve out an area for a great deal of new arguments," said Ronald W. Sage, the woman's Freehold lawyer. "He (the judge) recognized this confusion doctrine as a defense to refusing to take a breathalyzer."

Specifically, Coogan last Tuesday said Dorothy M. Cobbs, the defendant in State v. Cobbs, was confused about her rights when a state trooper asked her to take the test.

"I am satisfied that the confluence of the DWI charge … the strong likelihood that at or about … 6:10 p.m., when [the trooper] began his alcohol-influence report form, that Miss Cobbs was going to be charged, her physical condition, the combination of the close proximity to the Miranda warning … I am satisfied that she has created an appropriate confusion defense," Coogan said, according to a transcript of the Aug. 5 hearing.

Among the events that contributed to Cobbs' confusion, said Sage, was the after-affect of a violent struggle with the trooper who arrested Cobbs; her being sprayed with Mace by the trooper; the reading of her Miranda rights, which provide for counsel; and a 10-paragraph statement saying she can't refuse the test and is not entitled to counsel before taking the test.

To what extent the Monmouth County jurist is plowing new ground is debatable. There's a 1987 state Supreme Court opinion that discusses the so-called confusion doctrine. But that decision by Justice Daniel J. O'Hern didn't say whether it can be validly asserted in a New Jersey courtroom.

Coogan's ruling means that for the more than 30,000 motorists arrested each year for driving while intoxicated — a good many of whom refuse to take the test or, perhaps do so under duress — Coogan's decision gives them some breathing room in trying to convince a judge to dismiss the charges of refusing to take a breathalyzer test. In New Jersey, refusal to take a breathalyzer test carries a $250 to $500 fine and an automatic six-month license suspension.

Writing for the high court 10 years ago, O'Hern acknowledged some motorists may be confused when given their Miranda warnings, followed by listening to a 10-paragraph statement saying they cannot refuse to take a breathalyzer test and are not entitled to a lawyer during the administration of the test.

But, O'Hern said in State v. Leavitt that "without resolving whether any defendant may validly assert the (confusion) defense," if it were allowed, the defendant would have to develop a record proving there was a degree of confusion.

"I am satisfied that although it is an oblique reference," Coogan said, "Leavitt is, as written, sufficient to create the confusion defense and I also would note that the defendant bears the burden of persuasion if he or she wishes to establish a confusion defense."

Point Pleasant attorney John Menzel, who specializes in DWI defense work, said he does not expect Coogan's ruling to have as much impact as some might think.

"This is strictly a case-by-case finding," he said. "It's up to the fact-finder to determine whether the defendant was confused about his or her legal rights."

Assistant Monmouth County Prosecutor Thomas V. Campo did not return telephone calls seeking comment..