DWI arrest of candidate Ian Smith: When can you refuse a breathalyzer in NJ?
An attorney with experience in drunk-driving cases says a controversial candidate for Congress may have created more trouble by refusing to submit to a breathalyzer test after a traffic stop this month.
The political consultant for Ian Smith, meanwhile, says the gym owner is innocent of the charges and has called for the release of police bodycam and dashcam footage.
Cinnaminson Police Chief Richard A. Calabrese told New Jersey 101.5 that Smith was stopped around 12:25 a.m. Sunday in the parking lot of the Pandora Diner on Route 130. He was taken to police headquarters and also charged with reckless driving, careless driving and refusing to consent to a breathalyzer test among other offenses.
“Ian Smith was not driving drunk. Ian Smith is innocent. Bodycam footage will show Ian passed a field sobriety test. The Cinnaminson police department should immediately release the body cam footage to every news outlet immediately," Steve Kush said in a statement.
Kush, who offered no proof of a connection, blamed Gov. Phil Murphy for harboring a vendetta over Smith's defiance of the 2020 mandate that closed indoor gyms.
New Jersey 101.5 has requested copies of any video of the stop and arrest recorded by police.
Smith, who served a prison sentence for killing a young man in a drunk driving crash, is a candidate in the 3rd Congressional District Republican primary. His defiance of Murphy's executive orders turned him into a hero in some conservative and Republican circles. Using the spotlight, he is making his first run for public office.
Refusing a breathalyzer has consequences
Toms River attorney Robert Fuggi, who is not involved in Smith's case, said that from a legal standpoint Smith may have made a bigger problem for himself by refusing the test.
"Not taking a breathalyzer is not good advice," Fuggi told New Jersey 101.5.
A police officer has to have a "reasonable suspicion" that a person is driving while intoxicated that can be backed up by factual support in order to initiate a traffic stop. That support comes in the form of behaviors such as erratic driving, speeding, going through a red light or not using a turn signal.
"If the police officer is making observations and there's the suggestion or basis that a person may be driving while intoxicated or under the influence of some narcotic or drug, then he can ask for a field sobriety test," Fuggi said.
The driver's performance during that test determines if the next step is taken, a breathalyzer test at the police station, according to Fuggi.
And if a driver refuses to take the test? The assumption under the law is that you are operating under the influence.
"If there are sufficient facts to warrant that a person should have taken a breathalyzer under New Jersey law then they're going to lose their license as if they were driving while intoxicated or under the influence. There's no difference," Fuggi said.
Smith's campaign as said that he passed the field sobriety test.
Taking the test gives a defendant option
Fuggi said that if a driver believes they are not intoxicated they should let the justice system play out. An attorney can request the calibration record of the breathalyzer machine, for example.
"You're better off taking the breathalyzer and taking your chances with whether or not the machine was properly working. Make sure all the T's are crossed and the I's dotted rather than a flat-out refusal," Fuggi said.
Fuggi said that the refusal could be considered a second offense for a driver with a previous offense.
Smith was charged in 2007 with causing the death of Atlantic County College student Kevin Ade. He was also charged with possession of marijuana. He pleaded guilty to second-degree vehicular homicide while the other charges were dismissed. He was sentenced in 2008 to five years and six months in prison with three years of supervised release.
Smith's consultant cited Assemblyman Paul Moriarty's refusal to take the breathalyzer test 10 years ago as a precedent for a public figure to decline the test. The charges against Moriarty were dropped and the officer ultimately lost his job in a legal saga that lasted years.
Chief: Smith is welcome to dispute the charges
The police chief would not say if he has viewed the video.
"The request for the release of the video is under consideration by the township solicitor’s office. The charges have been filed. If he wants to dispute them, he can do so when he has his day in court," Calabrese told New Jersey 101.5 Wednesday morning.
Only one of Smith's opponents has commented on the arrest.
"Drunk driving is dangerous. I think we all know that especially what happened earlier in his life you'd hope he learned a lesson. It's just unfortunate," Nicholas Ferrara told New Jersey 101.5.
Robert Healey and Shawn Hyland did not respond to New Jersey 101.5's request for comment on Tuesday.
Dan Alexander is a reporter for New Jersey 101.5. You can reach him at firstname.lastname@example.org
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