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Breath Test Refusal In Manchester

Posted by Carmine R. Villani | Sep 27, 2016 | 0 Comments

Alcohol not only impairs your ability to operate a vehicle in the state of New Jersey but it can also affect your decision making. Did you know that in New Jersey drivers who are stopped on suspicion of DWI and refuse to submit to a breath test can face punishment more severe than first offense DWI. In New Jersey there are laws that create what is known as implied consent for a driver to submit to breathe test when requested to do so by law enforcement.  A breath test is performed by a police officer using the Alcotest 7110 to detect the level of alcohol in the person's blood. Whether you refused in Ocean or Monmouth County you will need legal representation and our firm of Villani & DeLuca, P.C. represents clients charged with refusals throughout Monmouth County.

N.J.S.A. 2C 39: 4-50.2 Refusal in Manchester

From the time a driver is given his or her driver's license, implied consent is created to submit to breath tests. The language of N.J.S.A. 2C 39:4-50.2 lays out this requirement and all the conditions that law enforcement must follow in seeking a breath test sample.

“Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be 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”

(b)A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

(c)  In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

(d)  The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

(e)  No chemical test, as provided in this section, 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 in accordance with section

What are the penalties for a refusal?

While a blood alcohol concentration of 0.08% will result in a driver being charged with DWI, the penalties for a DWI can increase based on the alcohol concentration of the driver. Compared to a DWI, a refusal will automatically carry penalties similar to that of a person charged with a DWI for a higher blood alcohol concentration. For a first time refusal the driver can expect:

  • Payment of a $300-$500 fine,
  • A driver's license suspension for 7 months to 1 year,
  • Mandatory installation of an ignition interlock device during license suspension and for a period 6 months to 1 year after restoration of the driver's license.
  • Participation in an alcohol education program at the Intoxicated Driver's Resource Center

Are there any defenses available for a refusal?

Refusals are a difficult charge to overcome in Monmouth County as the State wants to discourage drivers from refusing. While a refusal can easily be found when the driver rejects the officer's request by saying “No”, there are other ways a person could be charged with refusal. Examples of ways a driver can also be charged with refusing in Monmouth County include: being ambiguous, remaining silent, or any attempt to mislead police officers with their sample. Although the driver has certain obligations during a stop law enforcement also has to follow specific procedures when requesting a breath sample. A police officer by law has to inform the driver of the consequences of refusing, properly record any samples and under no circumstances can they coerce or threaten to take a sample.  If any of these requirements are not followed or the driver does not fully understand English, defenses may be available for a DWI refusal.

For the past 20 years Villani & DeLuca has been dedicated to defending the rights of Monmouth County drivers facing DWIs and refusals. By calling us today at 732 -965-3500 you can schedule a FREE consultation with one of our attorneys. If you or someone you know is facing a refusing charge, our team of experienced criminal defense attorneys can offer the assistance you need.


About the Author

Carmine R. Villani

Founding partner, Carmine Villani, Esq. is a former municipal prosecutor with over three decades of experience in Criminal and DWI Defense.


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