Refusing A Breath Test

New Jersey is an “implied consent” state. If you drive on our roads, you have implicitly agreed to submit to breath testing where an officer has probable cause to suspect you of driving while intoxicated. By law, the State requires drivers to submit to breath testing, without exception.

 Can I Legally Refuse A Breath Test?

Police Officer With DUI BreathlyzerYes, but there are consequences.  If you refuse, you will be charged with “Refusal to Submit”.  This offense is separate from a DWI, and carries its own penalties. And, you will still be charged with a DWI.

Refusing to submit to breath testing can make a DWI conviction more likely, since there is legal inference that can be drawn by the court that you refused because you believed you were intoxicated.  That is dumb logic, and it is “rebuttable”, but it puts you in a position where you have to testify or put on evidence to get you back to focusing on whether the physicals and observation case can result in a conviction for DWI. You would then face two separate violations, and penalties could double.  However, depending on your specific facts and circumstances, your refusal may have beneficial results to your case.

Should I Plead Guilty?

No. There are many effective defenses to a charge of Refusal.

In some cases, the validity of a vehicle stop can be challenged. First, before the officer pulled you over, he had to have had reasonable suspicion that you were operating impaired, otherwise the arrest will be invalid, as well as the results of any testing.

The administration and evaluation of field sobriety tests is another factor that may be contested. Learn more about roadside testing, and the qualifications that give our attorneys a unique expertise in this domain of police procedure, here.

Beyond these considerations, the lawyers at Levow DWI Law know the nuances of New Jersey DWI law and Refusal law, and can tell you whether your refusal to submit to the breath testing may actually help your defense.

Did the Officer Properly Instruct Me To Submit?

Instructing a driver to submit to a breath test is complicated.

Once you are in custody, you must be read a series of statements exactly as they are listed in New Jersey’s DWI Statute (N.J.S.A. 39:4-50.2(e)). This process is required, and essential to the preservation of your rights. If an officer omits any statement, or deviates from the Statute, the charge of Refusal will not stand.

The Division of Motor Vehicles’ “Standard Statement “

New Jersey considers this Standard Statement so important that a prosecuting attorney will have to prove that it was read to you. If they fail to provide adequate proof, the Refusal charge will be dismissed.

Below you’ll find the specific statements relevant to Refusal, along with explanations. You can find a full text of the “Standard Statement” here.

“2.       The law requires you to submit samples of your breath for the purpose of testing to determine alcohol content.”

Refusal applies to breath testing only.  You can lawfully refuse to submit to blood testing and urine testing.

“3.       A record of the taking of the breath samples, including the test results, will be made. Upon your request, a copy of that record will be made available to you.”

At the bottom of the Alcohol Influence Report, it says “copy given to subject”.  If you weren’t given a copy of the results before you left the police station, please mention that during our phone consultation.

“4.       After you have provided samples of your breath for testing, you have the right, at your own expense, to have a person or physician of your own selection take independent samples of your breath, blood or urine for independent testing.”

A court would consider it a significant violation if you were not advised of your right to obtain an independent test, or if your ability to get testing is blocked.  However, obtaining an independent test within the very few hours after the arrest is unlikely unless you have a doctor who can send you for testing at a local lab such as LabCorp or Qwest.  A hospital will generally not accept a walk-in patient seeking only a blood test.

“5.       If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated.”

This statement makes it clear that Refusal is a separate violation, distinct from DWI.  If you lose both charges, terms of suspension run consecutively.  This is especially serious in second and greater offenses, resulting in a doubling suspension time from 2 years to 4 years on a second offense, and making a 10 year suspension on a third conviction turn into a 20 year suspension.

“6.       If a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.”

Seven month to twenty years is a large period of time that you would remember hearing.  If the officer didn’t read you the form, you won’t recall this statement.  If he didn’t read you the form, the officer failed to follow proper protocol, and the Refusal charge can be dismissed.

“7.       You have no legal right to have an attorney, physician or anyone else present for the purpose of taking the breath samples. You have no legal right to refuse to give, or delay giving, samples of your breath.”

Individuals charged with a violation of law are generally afforded the right to speak with a lawyer before speaking with police officers. According to state and federal case law, this right does not apply to breath tests.  Furthermore, you cannot “remain silent,” and fail to answer the officer’s request to submit. Silence is considered an “unacceptable” response, and will result in a Refusal charge.

“8.         Any response from you that is ambiguous or conditional, in any respect, to my request that you provide breath samples, will be treated as a refusal to submit to breath testing. Even if you agree to take the test, but then do not follow my instructions, do not properly perform the test, or do not provide sufficient breath samples, I will charge you with refusal to submit to breath testing.”

If you do not answer, the officer will explain that you must either agree “unconditionally” or you will be charged with refusal. Continued silence, or an ambiguous response, will result in a charge of Refusal.

With that being said, several defenses may still exist. Individuals who understand only a foreign language, must be read the Standard Statement in that language.  Failure to supply a linguistic accommodation may be a valid defense against the charge of Refusal. In other cases, drivers are physically incapable of submitting because of a medical condition. This too is generally considered a valid argument.

“9.       I repeat, the law requires you to submit samples of your breath for testing. Will you submit the samples of your breath?”

Officers will not accept any “if’s, and’s or buts.” Shrugging your shoulders won’t do, either. A firm “yes” is required; anything else will be construed as a Refusal.

If the arrested person does not respond, or gives any ambiguous or conditional answer short of an unequivocal “yes,” the police officer shall read the following.

Your answer is not acceptable. The law requires that you submit samples of your  breath  for breath testing. If you do not answer, or answer with anything other than “yes,” I will charge you with refusal. Now, I ask you again, will you submit to breath testing?

In several cases, New Jersey’s courts have held that intentionally delaying a breath test can be interpreted as Refusal.

Legitimate confusion: if you did not understand the instructions as they were read to you, you may have a “confusion defense”.

What are the Penalties for Refusal?

Just like DWI, the penalties assessed by the court for Refusal vary in severity depending on whether you have prior convictions.

One of the most advantageous aspects of a Refusal only conviction, i.e. where the DWI is dismissed, there is no level of jail on any Refusal conviction.

Figuring out prior convictions in a refusal case is a little trickier than a stand-alone DWI. A prior refusal charge does not enhance a subsequent DWI, however, a prior DWI will enhance a subsequent Refusal charge.  For example, assume a conviction for refusal in 2008 and a current charge of DWI. The current matter is a first offense.  However, for a 2008 conviction for DWI and a current Refusal charge, you would be facing a 2nd offense Refusal charge.

First Offense

  • License revocation from 7 months to one year
  • Installation of ignition interlock device for the 7 to 12 month period of suspension and for 6 months to one year after restoration.
  • Fine between $300 and $500
  • 12 hour alcohol education course through the Intoxicated Driver Resource Center (IDRC)
  • Surcharge from the state of $3,000
  • Surcharge from your insurance company of at least $3,000

Second Offense

  • License revocation of two years
  • Installation of ignition interlock device for the 2 year period of suspension and for 2 years during the restoration program.
  • Fine between $500 and $1,000
  • 48 hour IDRC course in detainment
  • No jail
  • Surcharge from the state of $3,000
  • Surcharge from your insurance company of at least $3,000

Third or More

  • License revocation for ten years
  • Fine of $1,000
  • 12 to 48 hour IDRC detainment. You may be referred for additional, mandatorytreatment
  • No jail (if the DWI gets dismissed as well)
  • Surcharge from the state of $4,500, payable over three years
  • Surcharge from your insurance company of at least $3,000

If you are convicted of both DWI and Refusal, you will face the penalties for both violations. To learn more about the consequences of a DWI in New Jersey, click here.

If you have been convicted of Refusal before, and are then convicted of both DWI and Refusal, your license suspension periods will be served consecutively. You’ll have to serve the period for one conviction and then, after that, the period for the other.

Refusal to Submit In a School Zone

If you are pulled over within 1,000 feet of school property, or in a school crossing zone, and refuse a breath test, the penalties essentially double.

First School Zone Refusal

  • Fine between $600 and $1,000
  • License suspension between one and two years

Second School Zone Refusal

  • License suspension for four years
  • Fine between $1,000 and $2,000

Third or Greater

  • License suspension for 20 years
  • Fine of $2,000

Contact New Jersey’s Refusal to Submit Lawyers

Charged with Refusal to submit to a breath test? The penalties are serious, and conviction can leave your record and your life affected forever.

The experienced attorneys at Levow DWI Law want to help. We’ve spent our time over the past decades developing the unique expertise needed to beat your charge. In that time, we’ve protected the rights of thousands just like you, and shaped New Jersey’s DWI law.  We’ll do everything we can in your case, leveraging decades of invaluable trial experience and innovative defense strategies.  We have a track record of proven success in defending Refusal charges.  Let us help you.

Schedule a free consultation now to begin discussing your case. Call 1-877-735-2288 or complete our online contact form today.