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2 N.J.A.R. 408

Motor Vehicles, Division of v. Massuk, Stephen T
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Citation: 2 N.J.A.R. 408
Decision Date: 1979
Synopsis: Stephen T. Massuk requested a hearing on the proposed suspension of his driving privileges based upon his refusal to submit to a breath alcohol determination test as required by N.J.S.A. 39:4-50.2 et seq. The administrative law judge concluded that the statutory issues of reasonable grounds and arrest had been established, but that the licensee's refusal to take the test had not been established by a preponderance of the believable evidence. The administrative law judge noted that although the licensee had evidenced a willingness to take the breath test at the time of his arrest, when the standard request form was being read to him at the police station, the licensee lost consciousness, could not be revived and the police officer was unable to complete reading the required statements. The judge found that since the licensee's unconsciousness resulted not solely from voluntary intoxication, but as a result of fatigue, intoxication and pain' from an arm injury, the unconsciousness does not in and of itself constitute a refusal. In addition, the administrative law judge found that the licensee never indicated a revocation of his original intent to take the test, and the fact that he was subsequently incapacitated before the entire required statement could be read to him did not constitute a violation of statute. Accordingly, the judge concluded that the licensee had not willingly refused to take the breathalyzer test. Division of Motor Vehicles, Unrepresented George W. Johnson, Esq., for Respondent