Refusing a Breathalyzer in New Jersey
If you have been stopped by the police for a traffic violation which leads to the officer believing you may be intoxicated, the police officer must establish that there is probable cause to make an arrest. Establishing whether there is probable cause for the arrest is accomplished through discussions with the driver and then the use of field sobriety testing.
Once arrested for suspicion of DWI, you will be brought to the police station or State Trooper barracks and requested to perform a breath test to determine your blood alcohol content (BAC). You must submit to this type of testing based upon New Jersey's implied consent law, or you will be charged with refusal to submit to a breath test. Refusal to submit to a breath test can lead to rather stiff penalties, ranging from a 9–12-month interlock device installed on your vehicle for a first offender, a 2–4-year interlock installation requirement, and an 8-year license loss if you are a third offender. If you have been charged with refusing to submit to a breath test, you should contact an attorney at Villani & DeLuca for a free consultation. We have experience defending NJ refusal or drunk driving charges.
Implied Consent to Breath Tests in New Jersey
When you receive a New Jersey driver's license you automatically provide “implied consent”, which means you are deemed to have given consent to the taking of samples of your breath to determine alcohol content if you are pulled over and exhibit signs of intoxication. This law is set forth in NJS 39:4-50.2. The moment that you obtain permission to drive in the state, you are deemed to have agreed to provide breath samples when a police officer, with probable cause to believe you were drinking and driving, asks for them. You will be read a standard statement advising that if you fail to provide the requested breath test that you will be issued a ticket for refusal to submit to a breath test in violation of 39:4-50.4a, which sets forth the penalties for a refusal violation.
Officers May Request That You Perform Field Sobriety Tests
If the police officer develops a reasonable suspicion that a motorist is intoxicated or impaired after the traffic stop, the police officer will request the driver perform divided attention tests, called field sobriety tests, to try and establish probable cause. They cannot make an arrest based on reasonable suspicion alone. An arrest for DWI in New Jersey must be based on probable cause, which has been described by the courts as a well-grounded suspicion. The standard tests performed are the walk and turn test and the one leg stand test. These tests are used by officers to assess whether the driver is impaired by the ingestion of alcohol or drugs. You are not required to perform a field sobriety test, but if you fail to perform the tests, the prosecutor is entitled to an inference that you chose not to do the tests to avoid providing evidence of intoxication. This is referred to as a “negative inference”.
There are many reasons unrelated to alcohol or drug use which could cause someone to perform poorly on the a field sobriety test. The officer administering the test may make an error. Examples of such errors include the officer not providing proper instructions, performing the tests on an uneven surface, or performing the tests in poor weather conditions. Other factors that may impact performance on a field sobriety test are medical conditions or injuries that affect balance, or even wearing certain shoes such as high-heels or flip flops.
In a refusal case there is no alcohol reading, but the driver will be charged with DWI or DUI based upon the officer's investigation. This is based upon the officer's belief that the driver is intoxicated, which is the basis for the request to provide breath samples.
How Drivers Refuse a Breath Test
When a New Jersey police officer pulls you over and asks that you take a breath test, the law of implied consent requires that you agree to take the test. The arresting officer will read you a standard statement prior to administering the test at the police station or trooper barracks.
Here is what the officer tells you in the standard statement:
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The law requires you to take chemical tests for BAC.
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Records of the samples will be made. (You have the right to request to obtain the record)
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Your right to consult with an attorney does not allow you to refuse giving a sample or to delay giving samples.
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You have the right to have a person of your own choosing take independent samples at some point after the police test is completed.
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If you do not comply, you will be given a separate summons for refusal to submit to the breath test. (That may lead to separate penalties)
When you are asked by the arresting officer to take the breath test, you must affirmatively give your consent. According to the statement, your consent must be clear and unambiguous. This means the officers are looking for a yes or no answer. Stating, “I would like to speak to a lawyer” is not a yes and will be treated as a no. You do not have the right to have an attorney present when you are taking the test.
Once you have provided your consent, you must blow into the breath test device properly and in a manner that will allow the machine to provide a proper reading. A proper reading will only be achieved if you blow a sufficient volume of breath air for long enough for the reading to register. The instrument requires two proper breath samples to be considered in evidence. If you do not register two acceptable tests you will be charged with refusal. This can happen if you intentionally blow into the device with very short breaths, blow around the mouthpiece, or otherwise make efforts to not provide a proper sample. There are times when individuals have a pre-existing, documented medical lung issue, and this may provide a defense.
If you choose to remain silent when the officer is asking for your answer to the standard statement, this will be treated as a breath test refusal. Remaining silent is treated in the same manner as saying no. While you have a constitutional right to remain silent when you are being questioned, the right is not the same when you have been asked to take a breathalyzer test.
Similarly, if you answer a question with a question, or make your consent to breath testing conditional, it may also be treated as a refusal. You would need to say an audible "yes" or "I will." The officer does not have to negotiate with you. They can give you a summons on hearing the first "no."
How Police Detect Blood Alcohol Level or Content
New Jersey officers can administer different types of chemical test to detect the presence of alcohol or drugs in your system. There are three primary types of chemical testing that law enforcement may use:
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Breath test - The suspect would be asked to blow into a device that measures the amount of alcohol expelled from your lungs. The machine then uses a formula to translate the amount of alcohol on your breath to the amount that is in your bloodstream. Breath samples are the most common and quickest ways of verifying BAC. This is used only for alcohol. Breath tests have not yet been developed and accepted to test for drugs.
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Urine test - This testing would be administered once someone is taken to a police station. This test is commonly used to test for drugs, but the flaw in this test is that it only proves that something was ingested at some point prior to the sample but does not show a level of the drug or a specific time the drug may have been ingested. If alcohol is ingested, there will be alcohol in the urine, although it may take two hours or more for the alcohol to show up in the urine. The use of urine tests for alcohol aren't useful in determining a level of intoxication, only that alcohol had been ingested at some point. Under current law, refusing to provide urine is not considered a refusal under the implied consent law.
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Blood analysis - Since alcohol enters the bloodstream when it is in the body, police may draw a sample of blood to directly detect the alcohol. Blood tests can be used to show the presence of drugs or alcohol in your system. Blood tests can also be used to show levels of drugs or alcohol in your bloodstream. A blood draw must be done in a medically acceptable manner and is most commonly done in the hospital after an accident or where medical treatment is required. You are not required to consent to a blood draw. Without consent from you, the police must obtain a warrant to obtain a blood draw. Under current law, refusing to consent to a blood draw is not a refusal under the implied consent law.
Breathalyzer readings are only permitted in evidence if the machine has been properly maintained and calibrated, and a trained and certified officer performs the test according to the strict procedural requirements. An experienced DWI attorney and the experts used by experienced DWI attorneys have methods to find procedural defects when a test is not properly conducted according to the established procedures.
The Police Must Have Probable Cause to Arrest
Even with implied consent, it does not mean that police officers can pull you over anytime they want and ask for a breath sample or apprehend you to conduct chemical tests.
New Jersey law enforcement must still have probable cause to believe a traffic offense has occurred to stop and arrest a driver. Probable cause for the stop is when a police officer has a reasonable basis to believe that a traffic violation or crime is being committed. Probable cause to arrest for DWI which could later result in refusal is based on an officer's well-grounded suspicion that an individual is under the influence of alcohol or drugs while operating a motor vehicle.
If police see you committing any motor vehicle violation, they will make a stop. Then, if they form a basis to believe that you are intoxicated, they will ask for a breath test.
Police must establish that you operated a motor vehicle while intoxicated. They must either observe your behavior behind the wheel, receive a report from someone else about a potential traffic violation, or use the supporting evidence to prove you operated the motor vehicle. For example, let's say you are sleeping in your vehicle on the side of the road. The officer can surmise that you drove or operated your car while intoxicated to get there.
Breath Test Refusal Penalties
First Offense
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LOSS OF LICENSE from the time of conviction until an interlock device is installed
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$300-$500 fine
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12 hours at Intoxicated Driver Resource Center (IDRC)
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$100 to Drunk Driving Fund
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$100 to Alcohol Education & Rehabilitation Fund
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Insurance surcharge of $1,000/year for 3 years
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$75 Neighborhood Service Fund
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interlock device installed for a period of 9 to 15 months
One of the major benefits of a refusal over a DUI conviction in a first time offense is that a future DWI charge will be considered a first offense for DWI.
Second Offense
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1-2 years license suspension
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$500-$1000 fine
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48 hours at IDRC
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$100 to Drunk Driving Fund
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$100 to Alcohol Education & Rehabilitation Fund
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Insurance surcharge of $1,000/year for 3 years
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$75 Neighborhood Service Fund
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Interlock installed for a range of 2 to 4 years
One benefit of a refusal over a DUI conviction on a second offense is there is no 30-day community service component. With a second offense DWI, in addition to the standard refusal penalties, there is a mandatory 30-day community service requirement.
Third Offense
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8 years license suspension
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$1000 fine
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48 hours at IDRC
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$100 to Drunk Driving Fund
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$100 to Alcohol Education & Rehabilitation Fund
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Insurance surcharge of $1,000/year for 3 years
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$75 Neighborhood Service Fund
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Interlock installed for a range of 2 to 4 years
A huge benefit of a refusal rather that a DWI conviction on a third offense is that there is no jail component. A third offense conviction for DWI includes mandatory six months in jail.
Penalties Increase if You Have a Prior Refusal, DWI, Or DUI Conviction
If you already have one conviction, you are subject to license suspension. A third conviction will elicit more serious fines and suspensions. A prior DWI or refusal charge will enhance or increase the penalties for a later charge. You will be considered a second offender if you had a prior DWI. You will be considered a third offender if you had two prior charges. There is a provision in the statute that if the prior offense is over 10 years before your current offense, you may be entitled to a “step down”, meaning it can possibly drop down one level. This is something to discuss with counsel prior to considering any plea.
According to the case law, refusal charge may not be used to enhance a later DWI. Therefore, if you receive a first time offense refusal and are not convicted of DWI, if you later receive a DWI charge, that DWI will be considered a first offense. An experienced DWI lawyer can advise you regarding the full treatment of a subsequent offense DWI where a prior offense is a refusal only, without a conviction for the related DWI charge with that refusal.
The Benefits of Refusing the Breath Test in New Jersey on a First Offense DWI
Often, defendants regret the decision to refuse a breathalyzer in New Jersey. However, there are some benefits to refusing the breathalyzer. Although this is not a complete list, there are certain benefits to refusing to submit to a breathalyzer if you would have had a high BAC if you had taken the breath test.
With a first offense DWI, there are ranges of penalties based upon the BAC level of the breath sample. With a BAC from .08%, the legal limit, .10%, there is a 3-month interlock; with a BAC of .10%-.15%, there is a 7–12-month interlock; with a .15% or above, there is a loss of license of 4-6 months, during which time an interlock is required plus an interlock would need to remain on the vehicle for 9-15 months after the license suspension period. So, if you have a high BAC over .15%, you save yourself a 4–6-month loss of license if you refuse. A refusal would carry a 9–12-month interlock, but you would only lose your license for a short period of time; essentially the time it takes to have the interlock installed and obtain a newly issued interlock license. Effectively, you would lose your license for a few days rather than 4-6 months if your BAC would have been over .15% anyway. If your BAC would have been below a .15%, a DWI conviction would still result in an interlock requirement, which could have possibly been shorter by 3 months, or 7-12 months rather than 9-15 months for the refusal.
If you refuse, there is no BAC used in your prosecution. With no BAC, the prosecutor may have more difficulty proving you were intoxicated based upon your conduct as shown in the videos and investigation reports. With no BAC, if you are convicted of a DWI you are presumed to be a low tier DWI with a .08%-.10% BAC, and therefore your sentence would be a 3-month interlock device plus the standard first offense DWI penalties.
Often, with a simultaneous plea (or sentence) to a first offense DWI and refusal, the sentences will be run “concurrently”, or together. Accordingly, if you were to obtain the minimum 9-month interlock sentence and the 3-month DWI sentence, you could serve a total of 9 months. The court can run them consecutively, which would add them together, making the range from 12 months (9 months + 3 months) to 15 months (12 months + 3 months). However, they are often run together particularly with a plea.
An experienced New Jersey DWI lawyer can help you navigate the process.
An Ignition Interlock Device (IID) Must be Installed at Your Own Expense
In addition to the fines, court costs, and insurance surcharges, New Jersey law requires you also need to pay for the ignition interlock device. The IID is a device which is installed in your car and requires that you blow into it for your car to start. If you have alcohol in your system, the car will not start, and the machine will record your failed attempt.
To install an interlock, you would generally pay a one-time installation fee that is between $100-$200. Then, you would generally pay a monthly fee to lease the device. All refusal convictions result in the IID being installed on your car. You can only drive a car with the interlock installed. You cannot rent or borrow a car that does not have the interlock. This causes issues for people who may have a company car or have requirements to drive a non owned vehicle. Simply stated, you cannot drive any vehicle that does not have an interlock. You will be turning in your drivers license upon conviction and after you have the interlock installed you will be issued a special interlock endorsed license by motor vehicle. Your license is suspended until you have the interlock license issued.
The penalties for driving without an interlock are severe. If you are convicted of driving a vehicle without the required interlock installed, you are subject to a one-year loss of license as provided in NJSA 39:4-50.19(a). You can see how your costs of driving will increase greatly, even without a DWI conviction. Aside from the fines at court as spelled out above, you are responsible for the cost of the interlock device, the insurance surcharge and also a significant increase in your car insurance rates for having an alcohol related offense.
Police May Obtain a Warrant for Chemical Tests
Even if you refuse a breath test, there is still a way for police to test you for alcohol. They can obtain a search warrant to draw blood to test for BAC. Alcohol remains in the bloodstream for enough time that a blood test can show that a driver was intoxicated.
However, police are not allowed to search you in this manner without your consent under most circumstances. In the past, police officers could conduct this type of search without a warrant, claiming that it was justified by exigent circumstances. When the suspect is able to delay giving samples, the amount of alcohol in the bloodstream could dissipate over time.
The officers must follow a strict procedure to obtain a warrant to draw blood and it must be done in a medically reasonable manner. No, the police officer will not be drawing blood- this must be done in a hospital setting by a nurse or phlebotomist. The police can apply for a telephonic warrant from a Judge to expedite the procedure. This means they provide the information and call a Judge for a warrant. Blood warrants are most often used in special cases where there is a serious injury or drugs are suspected. In most cases, after a person refuses to submit a breath sample the officers will charge refusal and not go the extra step of applying for a blood warrant.
IDRC and License Restoration after a Refusal Conviction
In New Jersey, you do not automatically get your driver's license back when the period of suspension is over. You must pay a license restoration fee to motor vehicle and proceed to get a license re-issued, but only after you have satisfied all sentencing requirements. Similarly, if you are sentenced to an interlock, the special interlock license is only removed after the prescribed period of time has expired and you have satisfied all of the other sentencing requirements. This includes completion of the IDRC requirements and the payment of all fines and penalties assessed at sentencing. Any person arrested who is convicted of an alcohol or drug related driving offense must complete a program through the Intoxicated Driver Resource Center.
IDRC - Intoxicated Drivers Resource Center
The IDRC is administered by the Health Department.
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For the first offense of refusing to give a breath sample, a defendant would have an IDRC requirement of 12-48 hours during two consecutive days.
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The defendant will attend an IDRC program in the County where they reside.
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The court will impose a $100 fee at sentencing to be paid to the IDRC.
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First offenders will pay $75 per day participating in the program.
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You must receive mandatory alcohol and highway safety education training.
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The IDRC will screen each offender for any possible addiction problems and determine the need for a full addiction assessment.
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If the IDRC deems additional treatment is necessary, you may be required to complete a program.
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If treatment is necessary, the offender must successfully complete treatment and be monitored by the IDRC.
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If you do not follow IDRC requirements, it may result in further license suspension and possible jail time.
You Can Still be Convicted of DWI Without a Breath Test
Law enforcement can still convict you of drunk driving, even if you refuse a breath test. The police in New Jersey use Body Cams and other video cameras to film their investigation of a stop and the interactions leading to a refusal and DWI charge. Through the investigation and use of a field sobriety test, the police can make a case that because of your conduct you were intoxicated. This is referred to as an “observation case”. Many DWI convictions are based upon the police officer's observations of your conduct that lead prosecutors to move forward with trial to prove that you were drunk. Prosecutors can assemble other evidence that could show that you were driving drunk, including witness testimony. Your conduct of slurring, swaying, the statements and admissions you make, and the overall circumstances of your arrest can often lead to an observation conviction for DWI, even without the Breathalyzer.
Why New Jersey Drivers Need a DWI Lawyer
Even though refusing a blood test is not a criminal offense, you should still have an experienced lawyer given the significant penalties that follow.
There may be defenses to breathalyzer refusal charges. For example, you could challenge the fact that the police officer had a justified suspicion to stop you in the first place. You may have a valid physical reason why you cannot take a breathalyzer test, such as asthma or pulmonary issues. However, the defenses to a breath test refusal charge are somewhat limited and require a case-by-case analysis to confirm that the police have proven all necessary factors to obtain a conviction.
Even if convicted of refusal and/or DWI, there are a range of possible penalties, including license suspensions and interlock device periods, fines, community service, jail, etc. When you hire an experienced DWI attorney, you have a better chance of getting the best possible outcome overall for your case.
