DWI / Breath Testing

The Supreme Court in the case of State v. Spell, the Justices ruled that the police are not required to read the second portion of the statement advising DWI suspects of their obligation to provide a breath sample (commonly referred to as “paragraph 36”) in every case. In reversing the Appellate Division, the Court went on to hold that New Jersey law only requires the reading of the second portion of paragraph 36 when the suspect asks for an attorney or provides an ambiguous answer to the law enforcement request to submit to the test. In those cases where the defendant flatly refuses to provide a breath sample, it is not necessary to read the second portion of the warning.

The Court’s decision renders moot a serious constitutional issue raised before the Appellate Division related to the authority of the judiciary to dictate police procedures.