Breathalyzer or Not? What Happens if You Refuse to Take a Breath Test?
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What does NJ law say?

New Jersey takes DWI/DUI very seriously. The state also maintains an implied consent law, which means that by holding a NJ driver’s license, you automatically give consent to a chemical test or breathalyzer if suspected of driving under the influence.

Implied consent

New Jersey’s implied consent law specifically states that if an officer stops you because he has probable cause to suspect that you’re driving while intoxicated, you automatically agree to taking a breathalyzer. You must take the test at the time of your arrest; however, an officer cannot force you to take it.

Refusing to take the test, NJSA 30:4-50.4a

The scenario:
It’s 2 a.m. and you’re on your way home from celebrating a friend’s birthday. Sure, you’ve had a few drinks, but you know you’re okay to drive. A police officer on patrol, who happens to see your car cross the yellow line, thinks otherwise. Flashing lights and a siren signal you to pull over.

It’s been an hour since your last drink, and you’re worried that if you consent to the Breathalyzer, you’ll get into trouble. The officer asks you if you consent. “Wow,” you think. “I didn’t know I had a choice! I’ll say ‘no’!”

Even if you know you may be impaired, don’t refuse the test.

Why? Because New Jersey’s law requires every driver to take a chemical breath test when requested, and if you refuse, the penalties are severe. You’ll be subject to a fine and automatic license suspension.

  • First offense: A seven-month license suspension plus $300 – $500 fine
  • Second offense: A two-year license suspension plus $500 – $1,000 fine
  • Third offense: A ten-year license suspension plus $1000 fine

If arrested for DWI/DUI while driving through a school area, a school crossing, or within 1,000 feet of a school the penalties listed above double.

The state of New Jersey considers refusing to take a Breathalyzer to be an admission of guilt. Remember, it’s a separate offense with separate punishments than those levied for DUI/DWI.

Conviction for refusing a breath test

There are five elements that the State must prove, with evidence, in order to convict you of refusing a Breathalyzer.  Probable cause to believe that the defendant operated a motor vehicle while under the influence of alcohol.  An officer can’t pull over a car to “fish” for DUI/DWI drivers. The State determines probable cause based upon the arresting officer’s impressions, training, experience, and consideration of the overall circumstances.

Defendant Arrest

The driver must be arrested and charged with DUI/DWI and the arrest must be supported by probable cause.

Refusal by defendant to submit to a Breathalyzer

Depending on the circumstances, defendants charged with DUI/DWI behave in a way that constitutes a refusal to take a chemical breath test, and the law states that anything besides an unqualified, unequivocal consent to an officer’s request for a Breathalyzer is a refusal.

Refusal scenarios include:

  • Silence: You can’t plead the fifth and remain silent when asked whether you’ll take a breath test. Silence, in this case, constitutes a refusal to take the test.
  • Insufficient number of breath samples: You must be able to provide at least two samples of your breath to ensure accurate, consistent results. Failure to do so constitutes a refusal.
  • Short samples: Don’t try to blow a short breath or pretend to blow into the tube. That’s a short sample, considered no sample, and may constitute a refusal.
  • Delayed administration of the breath test: You don’t have the right to delay taking the test while you contact your lawyer. Because of the nature of alcohol leaving your system fairly quickly, tests must be administered shortly after suspicion of intoxication. A delay—on your part—constitutes a refusal.
  • Conditional refusal: You can’t ask to use the phone or bathroom before you agree to take the test. You may not  attach any conditions to taking the breath test.
  • The confusion doctrine: If you want to use the “confusion doctrine” as your refusal to take the Breathalyzer, it’s also up to you to prove that you were confused. If you can’t prove you were confused by the warnings, it constitutes a refusal.
  • Physical incapacity: You can argue that, at the time you were asked, you were physically incapable of taking the test. If you sustained an injury—to your mouth, face, chest, lungs, for example—that prevented you from taking the Breathalyzer, you could be excused. Likewise, if you suffer from asthma or were shaken up by the accident, you could be excused.

Police have reasonable grounds to request a Breathalyzer

Again, an officer can’t pull over a car and request that the driver take a breath test without strong suspicion of DUI/DWI. A vehicle must be stopped for another moving violation to satisfy probable cause. Random vehicle stops don’t usually satisfy that probable cause standard in court.

The Breathalyzer must be admitted in accordance with the law

The officer must read the DMV Standard Statement 36 to the driver. If not, a more lenient court might consider it a good loophole for a DUI/DWI driver.

Defenses for the breath test refusal

It is possible for an attorney to successfully defend against a Breathalyzer refusal.

  • Confusion about your legal obligation to submit a breath sample (which is not the same as confusion caused by intoxication)
  • Physical inability to give sufficient breath samples due to physical conditions that include asthma, emphysema, or trauma

Remember – it really is in your best interest to take the Breathalyzer if you’re asked. Those penalties won’t be assessed instead of the charges and fines you’d face that are associated with the DUI/DWI but in addition to those fines. That adds up very, very quickly.

However, the New Jersey State Supreme Court ruled unanimously to not count prior convictions for refusing to take a breath test against a defendant who is sentenced for DWI. The Court found, under state law, that DWI convictions and convictions for refusing Breathalyzer aren’t interchangeable and can’t be combined for repeat offenders.

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