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A Few Thoughts of the New Refusal Form

7/5/12

A few thoughts on the new form. (1) If an officer does not use the new form, then under O'Driscoll, the refusal has to be dismissed. While O'Driscoll has certainly been used lately to toss refusals because the interlock was not part of the language in the old form, that is an expansion of the O'Driscol holding, while not reading the correct form is exactly on point with the
case. Therefore, with the new form being issued is seems clear that only reading it is acceptable. (2) The State has taken this opportunity to add language meant to make clearer that there can be "blowing refusals" (my term not theirs.) In State v Schmidt, the Supreme Court held that a blowin refusal did not require the reading of the additional refusal statement However, factually in Schmidt, the officer advised the defendant that is he
didn't blow properly, he would be charged with refusal. While there was nothing in the prior refusal statements about this, the new form now advises that you will be charged in that case. (3) The statement continues to be at odds with the AIR issued in every case. The statements says that you will be given a copy of the results "upon request" while every AIR printed in the state says at the bottom that a copy is given to the subject. (4) Shouldn't the new form mention (per State v Marquez) that the defendant has the right to fully understand what is being said, i.e. in his native tongue. Now, I get that it will be argued that if the def understands enough to get that advice maybe he doesn't need it, but wouldn't it be better to makes sure ?

Jeff Gold

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