Defense to refusal sometimes where person medically
unable to provide breath samples State v. Monaco 444 NJ Super
539 (App. Div. 2016)
In
affirming defendant's conviction of driving under the influence and refusal to
submit to a chemical breath test, the court address two points related to the
refusal conviction. First, applying State v. O'Driscoll, 215 N.J. 461 (2013),
the court holds that defendant failed to present evidence that her refusal was
materially affected by the failure to inform her that she would be required to
install an ignition interlock if convicted. Second, the court holds that a
defendant bears the burden to prove that he or she lacked the physical capacity
to perform the chemical breath test. In this case, defendant maintained her
asthma rendered her incapable of providing the minimum air volume. Although
defendant's treating physician testified about her pulmonary function, the Law
Division judge found the proofs were insufficient to establish defendant was
incapable of providing the requisite air volume.
