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  • By: Kevin Leckerman, Esq.
  • Published: April 1, 2011
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A perplexing shift in New Jersey constitutional law and municipal court procedure occurred on March 18, 2010.  The New Jersey Appellate Division in State v. Kim, A-3863-08T4, denied the defendant’s appeal because he did not originally file a motion to suppress evidence of refusing to submit breath samples.  Additionally, the court ruled that the defendant failed to prove he did not understand the refusal warnings provided to him in English.  This holding and new rules of law are contrary to the Due Process clause, Rules of Procedure 3:5-7 and 7:5-2, and the Refusal statute (N.J.S.A. 39:4-50.4a).

Under the Refusal statute and State v. Cummings, it is required for conviction that the prosecution must prove: 1) there was probable cause to believe a person was operating a vehicle; 2) there was probable cause to believe that the person was intoxicated; 3) that the person was under arrest; and 4) that beyond a reasonable doubt the person refused to submit to a breath test upon request of a police officer.  Nowhere does the statute require that a defendant bear the burden of negating the above elements or bear the burden of filing a motion challenging the actions of the police.

Nonetheless, in the Kim opinion, the Court cited Rules of Procedure 3:5-7 and 7:5-2 as requiring that a motion to suppress be filed.  However, both rules only govern instances when a defendant seeks to suppress evidence that is seized with or without a warrant.  Neither rule requires that a defendant file a motion to suppress evidence in any other situation.  And certainly, these rules do not require that a defendant file a motion to suppress evidence when there is no assertion whatsoever that the police seized evidence illegally.

Mr. Kim did not claim that the police unconstitutionally obtained information from him.  He asserted that refusal warnings were not conveyed in a meaningful way.  As opposed to seeking suppression of evidence, Mr. Kim wanted the trial court to be aware of all interactions between the police and him.  Citing evidence of these interactions, Kim argued there existed a language barrier that negated any comprehensive understanding of the warnings or an intention to refuse breath testing. Finally, Kim argued that modern notions of fair play and due process dictated that the police should have provided these warnings in his native language.

Dismissing Kim’s arguments, the Court stated the right to challenge the conviction was forfeited, because Kim never filed a motion to suppress evidence of the refusal at the trial level.  Furthermore, the Court alleviated the prosecution’s burden to prove the refusal charge beyond a reasonable doubt.  Instead, it shifted to the defendant a burden to disprove that he understood the refusal warnings.

Ultimately, the Court created a new set of rules for Mr. Kim that he surely was not aware of prior to his trial.  Just as unfortunate, for future refusal prosecutions, the State’s task of proving guilt has become markedly easier.

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