New Jersey Breath Test Refusals

Consequences of Refusing a Breath Test

In New Jersey every driver is deemed to have consented to giving a breath sample for testing when required by the police after a DUI arrest and failure to do so can be a serious violation, which is referred to as a "Refusal" violation under N. J. S. A. 39:4-50.4a. The penalties include substantial fines and a mandatory loss of driving privileges ranging from a minimum of seven months for a first offense, to up to ten years if there have been prior convictions. A conviction also requires the installation of an ignition interlock device in the driver's vehicle during the license suspension period and for a period of from six months to up to three years after the suspension period, depending on the circumstances. The license suspension and monetary penalties are increased if the offense occurred in a school zone.

It is important to note that a refusal conviction may be based on an outright refusal to take the test, or on a driver's failed effort to complete the test if the police maintain that the driver intentionally failed to perform the test properly by, for example, failing to give a sufficient breath sample. An officer may believe the driver intentionally performed the test improperly by, for example, failing to give a sufficient breath sample. Since a DUI conviction may be based on a driver's behavior and demeanor and the arresting officer's observations, a breath sample is not needed for a DUI conviction. Therefore, if the evidence is sufficient, a driver charged with both DUI and Refusal may be convicted of both offenses after a trial. Therefore, except in the case of a first Refusal conviction when a court may chose not to do so, a separate consecutive loss of driving privileges must be imposed for the Refusal conviction and additional fines and penalties are mandatory. Therefore, a driver charged with both DUI and Refusal is facing the possibility of double penalties.

Case Considerations

The field of Refusal law is complex and fast changing. Whether a driver may be successfully prosecuted depends upon many factors. The protection of a driver's rights requires a thorough analysis of the facts surrounding the interaction between the police and the driver, as well as all of the circumstances surrounding any breath test given to the driver at headquarters. While the issues vary greatly from case to case, the following listing highlights a few of the many considerations that could affect the outcome in a Refusal case. (They are provided as examples only and are not exhaustive, nor are they intended to suggest a likely outcome in a particular case.)

• If the person charged was pulled over by the police, what were the circumstances leading up to the driver being stopped, and was it lawful for the police officer to stop the driver? For example, if the driver was charged with offenses like: speeding, careless driving, reckless driving, failure to maintain lane, failure to signal, improper passing, failure to signal, leaving the scene of an accident, or tailgating; did the police have sufficient reason to stop the driver?
• If the person charged with DUI was not driving when they encountered the police, does the evidence show that he or she was "operating" the motor vehicle when they were allegedly impaired by alcohol, as the law defines operating?
• After the police first approached the person charged, did the officer have adequate reason to detain and evaluate the driver before the arrest?
• Did the officer administer field sobriety tests before the arrest? If not, what impact would that have on the arrest? If field sobriety tests were administered, were they administered and evaluated properly?
• Was the motor vehicle stop and the events at the roadside videotaped? If so, does the tape disclose useful evidence?
• Would expert testimony concerning the police officer's evaluation of the defendant at the roadside before the arrest be helpful in defending the case?
• After the DUI arrest and before the request to take the test, was the driver given the required warning concerning the consequence of refusing to take the test?
• If an Alcotest test was administered and if the driver attempted to give a breath sample but was nevertheless charged with refusal, was the unit in proper working order and did a properly certified operator administer the test in the approved manner?
• If an Alcotest test was administered and if the driver attempted to give a breath sample but was nevertheless charged with refusal, was the driver given the proper instructions concerning how to perform the test?
• If the driver attempted to give a breath sample but was nevertheless charged with refusal, was the driver suffering from any impairment that might have affected his or her performance?
• If the driver is not fluent in English, was he or she informed of the consequences of refusing to provide a breath sample and the proper way to perform the test in a language they understood?
• Were the events at headquarters and the administration of the Alcotest videotaped? If so, does the tape disclose useful evidence?
• If the state is relying on an Alcotest test result to prove Refusal, could expert testimony analyzing the data from the Alcotest unit help show that the machine was not operating properly, and that the test results are therefore unreliable?
• Would it be useful to bring a motion before trial to exclude evidence the state needs to prove the charge, and if so, what steps might be taken to improve the likelihood of success?

New Jersey DWI Lawyer

A driver charged with refusal will almost certainly be charged with drunk driving also. Because the New Jersey Supreme Court has imposed rigid restrictions eliminating plea bargaining in most DUI and Refusal cases, the defendant will usually not have the option to negotiate with the state to plead guilty to only one of the two charges, or to a different charge. Therefore, since the defendant's options will usually be limited to either pleading guilty or going to trial, it is especially important that the state's case be carefully scrutinized before choosing a course of action. Finally, if the driver is the holder of a commercial drivers license, a "CDL," this decision becomes especially important because of the especially severe penalties resulting from a DUI conviction or a refusal conviction in that case.

This discussion of breath test refusal issues is not legal advice nor is it intended to suggest a particular outcome in your case. You must consult directly with an attorney in order to receive legal advice. We invite you to contact a skilled New Jersey DWI attorney from the Law Office of Allan Marain for assistance with your DWI charge. We will take the time to listen to your circumstances and advise you on the options available to you. We are available to represent clients in Middlesex, Monmouth, Mercer, Union and Somerset counties.

Contact a New Jersey DWI lawyer for a free initial consultation.