Challenging A Breath Test Refusal In New Jersey

Under New Jersey law, it is required that a driver submit to a breath test when arrested for driving while intoxicated (DWI). This law is known as implied consent. When an individual receives a driver's license from the State of New Jersey, they have "consented" to being tested as part of the permitting process. Under New Jersey law, people age 21 and older cannot have a blood alcohol content (BAC) of 0.08% or higher in their system when operating a motor vehicle. If their BAC is above the legal limit, they will be charge with the traffic offense of DWI. For people under the age 21, it is illegal to have a BAC level as minimal as 0.01% because they are under the legal drinking age.

Breath Test Refusal In New Jersey

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If a person is asked to take a DWI breathalyzer test and refuses to do so, it is known as a refusal. This is a different offense than DWI but carries the same swift penalties. The individual may not have even been guilty of a DWI, but  Breath Test Refusals have legal consequences as well. It is a common misconception that the driver is within their right not to agree to a breath tests when stopped on suspicion of DWI. This is not the case. Implied consent means the driver has no choice in the matter and refusing to take the test will result in legal penalties regardless of guilt or innocence for DWI. A police officer can not force you to take this test.

A misplaced belief that a driver can bluff their way out of the DWI charge by refusing to adhere to the implied consent law will only add more charges rather than avoiding them. In short, it doesn't do you any good to refuse to take the breath test when asked to do so. In fact, it only adds to the possible penalties a person will face. Even with the refusal, you will  still likely be charged with a DWI based on the other physical evidence gathered by the police. Now you have to contend with both charges.

New Jersey's DWI Refusal Warning

N.J.S.A. 39:4-50.2(e) (the “Implied Consent Law”) is the statute that requires a police officer to inform a person arrested for DWI of the consequences of refusing to submit to a breath test. The law specifically provides that:

“The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act.  A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.”

After being pulled over on suspicion of drunk driving, the police officer will often conduct field sobriety tests before formally arresting the driver and taking them to the police department. It is at the police station where the motorist will be requested to submit a breath sample in accordance with the implied consent law discussed above. During this request, the arresting officer will read the standard statement which explains to the driver the consequences of refusing the breath test. If the arrestee declines to submit a breath sample, he or she will be asked once more to confirm their refusal. If the arrested person does not respond, or gives any ambiguous or conditional answer short of an unequivocal “yes,” they will be issued the additional charge of refusal.

Breath Test Challenges In New Jersey

A refusal charge is harder to challenge then it is to challenge a breath test or a standardized field sobriety test. In order to validate the charge of a Breath Test Refusal, a police officer just needed probable cause for both the traffic stop and the DWI arrest. The person charged with administering the Breathalyzer will read a standardized statement making you aware of your rights if you refuse the breath test. Just because you feel you are not drunk or have a medical condition preventing you from taking the test is not a defense.

Speak To An Experienced New Jersey DWI Lawyer About Breath Test Refusals

If you have been charged with violating the implied consent law by refusing to submit to a breath test for DWI—even if you actually had no alcohol in your system—it is imperative to speak to an experienced attorney from Villani & DeLuca, P.C. in Point Pleasant Beach, New Jersey. Having proper legal representation is key, no matter where the arrest was made.


If you are facing a refusal charge in Ocean County or Monmouth County, New Jersey, call Villani & DeLuca, P.C. at 732-965-3999. Our DWI attorneys are available 24/7 for a FREE consultation!

Act Now Before It's Too Late!

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Mistakes happen all the time. If a mistake was made by the police or the New Jersey prosecution it should not hurt you and your family. Our experienced NJ DWI Defense Lawyers at Villani & DeLuca regularly protect the legal rights of people who have been charged with DWI / DUI or breath test refusal. This traffic offense carries the possible of jail time and costly fines in New Jersey. The stakes are too high and can last for years. A strong legal defense can often convince the courts to have your drunk driving charges dismissed or reduced. Don't risk your future by defending yourself against a DUI! Contact Villani & Deluca today for a FREE case evaluation on all your pending drunk driving charges.

This website is designed for information purposes only and should not be construed as formal legal advice nor the formation of an attorney/client relationship.

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