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3 N.J.A.R. 188

Motor Vehicles, Division of v. Kirk, Brian P
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Citation: 3 N.J.A.R. 188
Decision Date: 1981
Synopsis: The Division of Motor Vehicles alleged that Brian Kirk had vio- lated N.J.S.A. 39:4-50.2 by refusing to take a breathalyzer test. Kirk argued that he did not knowingly or consciously refuse to take the test because he was fast asleep at the time the required advisory state- ments were read to him, and thus, he could not hear or respond. The administrative law judge found that the evidence supported a conclusion that reasonable grounds existed to believe that Kirk had been driving on a public highway under the influence of intoxicating liquor and that he had been arrested and thus the only question to be resolved was whether Kirk had refused to take the breatt test. The administrative law judge found that Kirk had been asked to take a breath test once at the scene of the arrest and a second time at police headquarters, but had refused both times. Shortly thereafter, Kirk fell asleep and could not be awakened. The judge found that the arresting officer did everything reasonably possible to awaken Kirk before proceeding to read him the standard statement of rights and obligations to take the breath test. Since Kirk's deep state of sleep, which prevented him from hearing the request, was induced by his inebriated state, the judge determined that to excuse Kirk's refusal because of a disability incurred by voluntary intoxication would sub- vert the intent of the breath test refusal statute. Accordingly, the judge concluded that Kirk had refused the breath test without justification and ordered a suspension of his driving privileges for 90 days. James S. LaCorte, Esq. for Respondent (LaCorte, LaCorte & Wal- ters, Attorneys)