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.