REFUSING THE BREATH TEST IN NJ DUI, DWI, DRUNK DRIVING ARRESTS 

NJ Drunk Driving Laws


IMPLIED CONSENT TO THE BREATH TEST

Whether you know it or not, New Jersey law provides that any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State is deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of NJSA 39:4-50.


The law further provides that a record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, will be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

 

In addition to the samples taken and tests made at the direction of a police officer, the person tested is permitted to have samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

 

The police officer shall inform the person tested of his rights under the provisions of N.J.S.A. 39:4-50.2.

 

The law further provides that no chemical test, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test. The penalties for refusing to take the breathalyzer or alcotest essentially parallel those of a drunk driving prosecution and are as follows:

 

Refusing the Chemical Test

First Offense (For Refusing)

• 7 months to 1 year driving privilege suspension 

• $300-$500 fine 

• 12 hours minimum IDRC

Second Offense (For Refusing)

• 2 years driving privilege suspension 

•$500-$1,000fine 

•12 hours minimum IDRC 

Third and Subsequent Offenses (For Refusing)

• 10 years driving privilege suspension

• $1,000 fine 

• 12 hours minimum IDRC

Refusing Chemical Test in School Zone or Crossing

First Offense (For Refusing)

• 1 to 2 years driving privilege suspension 

•$600-$1,000fine 

•12 hours minimum IDRC

Second Offense (For Refusing)

• 4 years driving privilege suspension 

• $1,000-$2,000 fine 

• 12 hours minimum IDRC

Third and Subsequent Offenses (For Refusing)

• 20 years driving privilege suspension

• $2,000 fine 

• 12 hours minimum IDRC


The above penalties are for refusing-refusal only, and are on top of any penalties imposed for DUI, DWI, DRUNK DRIVING. 


WHAT ARE THE ELEMENTS OF A REFUSAL PROSECUTION?

There are four essential elements to sustain a refusal conviction:

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs (prior to the refusal);

(2) defendant was arrested for driving while intoxicated (prior to the refusal);

(3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so (prior to the refusal); and

(4) defendant thereafter refused to submit to the test.


ARE THERE DEFENSES TO A REFUSAL PROSECUTION?

YES! Each of the elements of the offense can be challenged from the probable cause for the officer making the stop in the first place, to the nature of the request, to the warnings given and the nature of the refusal by the defendant.


CAN THE WARNINGS AGAINST REFUSAL GIVEN BY THE POLICE BE CHALLENGED?

YES! In fact the warnings which had been given by the police as directed by the office of the Attorney General are currently under challenge in an appeal to the New Jersey Supreme Court in the matter of State v William O'Driscoll. Although the matter is lengthy and technically complicated, it boils down to the fact that the warnings given by the police against refusal may be inadequate in that they do not in fact completely advise a defendant of the potential penalties for refusing the breath test. The defense is highly technical, but can be highly effective. 


HOW WE CAN HELP.

The lawyers at Avery & Avery are extremely experienced in DWI, DUI, Drunk Driving and Refusal cases, and can guide you through the maze of complicated laws, court decisions and defenses, to achieve the best possible result in your DWI, DUI, Drunk Driving or Refusal case. Call us for your Free Initial Consultation at 201-943-2445.



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