Law Office of Robert J. Wittmann

I'm a South Jersey general practice attorney, Truman Scholar and former Congressional staffer with a passion for justice. My general practice focuses on civil litigation, family law and municipal court.

 

NJ BREATH TEST REFUSAL LAW

 

New Jersey's Refusal Laws are among the strictest in the nation. If you are pulled over for suspected DWI and refuse to give officers a breath-sample, you face a myriad of fines and life-altering penalties some of which are more harsh than a simple, first-time DWI conviction. In addition, officers have the right to charge you with DWI, in addition to Refusal, even if they never acquired a breath-sample from you.  Although there are many good defenses to a DWI charge, based on the circumstances, there are relatively few defenses to a Refusal charge. What makes matters worse is that, for first time offenders, Prosecutors are forbidden to drop the refusal charge during the plea-bargaining process.

  

A. ELEMENTS OF REFUSAL [State v. Marquez, 202 N.J. 485 (2010)]

  

 

1. The arresting officer had probable cause to believe that the Defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs

2. The Defendant was arrested for driving while intoxicated.

3. The officer requested that the Defendant submit to a Breathalyzer/Alcotest

4. That the officer informed the Defendant of the consequences of refusal to take said test.

5. That the Defendant thereafter refused to submit to the test

 

B. COMMON SCENARIOS WHERE PEOPLE ARE CHARGED WITH REFUSAL

 

1. Silence. A person can be charged with refusal if they are silent and refuse to take the breath-test. Refusal to answer the police officer's Breathalyzer/Alcotest questions will constitute a refusal under State v. Sherwin, 236 N.J. Super. 510 (1989).

2. Failure to blow hard enough. Unfortunately, this, too, counts as a refusal, pursuant to State v. Schmidt, 414 N.J. Super. 194 (App. Div. 2010). There are certain exceptions if one is a woman over 60 years old, or if you have serious, documented pulmonary and respiratory ailments such as chronic asthma, cystic fibrosis or emphysema. However, NJ courts have found people guilty of refusal on this basis, even if their failure to blow hard enough was due to a panic attack, or incessant crying.

3. Failure to provide more than one adequate sample. If you only give one adequate sample and either refuse to give subsequent samples, or are unable to give adequate subsequent samples, you can be charged with refusal under State v. White, 253 N.J. Super. 490 (Law Div. 1991).

4. Conditional Acceptance/Conditional Refusals. Oftentimes, people will refuse to take the breath-test until they are first able to call their spouse or lawyer, use the bathroom or get certain answers and information from the arresting police officer. Under NJ law, these things, too, amount to a refusal. An unfortunate side effect of these rules is that sometimes, people who are not intoxicated nonetheless get their licenses suspended.

 

C. BASIC DEFENSES TO REFUSAL

 

1. Medical Emergency

2. Confusion Doctrine. This comes into play if the police confuse you by reading you seemingly contradictory statements in the Miranda Warning and Alcotest Warnings.  Sometimes, after having been read their "Miranda Rights,"  Defendants incorrectly believe that the "right to remain silent" applies to their answering the officer's questions about whether they understood his instructions about taking the breath test. Sometimes, Defendants believe that, because of their "right to remain silent," that they have the right to say absolutely nothing and not give a breath sample.

3. Unconsciousness

4. Can't Understand English.  Sometimes, people who can't understand English are pulled over for DWI and they have no way of understanding the officer's instructions, especially those contained in paragraph 36 of NJ's mandatory DWI/Refusal warnings, which discuss the penalties of refusal.

5. Failure by the police to fully read paragraph 36 to you. Police are often able to escape this, by not videotaping station house breath-test procedures.

6. Police preventing the Defendant from getting an independent test. Pursuant to State v. Nicastro, 218 N.J. Super. 231 (Law Div. 1986), Defendants have the right to get an independent blood, urine or breath test.

7. An inability of the State to prove any of the elements of the Refusal law, beyond a reasonable doubt (State v. Cummings, 184 N.J. 84 (2005).

8. Serious Pulmonary/Respiratory Ailments, like Cystic Fibrosis, Lung Cancer, Emphysema

9. Police lacked probable cause or reasonable articulable suspicion to effectuate the Motor Vehicle stop

 

  D. PENALTIES FOR REFUSAL

 

1. FIRST OFFENSE


a. 7 month loss of license (often runs concurrent with DWI license suspension, if convicted)

b. $250 – $500 fine,

c. $1,000 yearly surcharge for 3 years,

d. 2 days in the Intoxicated Driver’s Resource Center (IDRC)

 

2. SECOND OFFENSE


a. 2 years loss of license,

b. $250-$500 fine,

c. $1,000 yearly surcharge for 3 years,

d. 2 days in the Intoxicated Driver’s Resource Center (IDRC)

 

3. THIRD OFFENSE


a. 10 year loss of license,

b. $250-$500 fine,

c. $1,000 yearly surcharge for 3 years,

d. 2 days in the Intoxicated Driver’s Resource Center.

 

My Law Office regularly serves the communities of Bellmawr, Runnemede, Deptford, Westville, Gloucester Township, N.J. (Blackwood, Glendora, Erial, Sicklerville, Blenheim, Lambs Terrace, Chews Landing, and Hilltop) and Washington Township, N.J. (Turnersville, Sewell, Hurffville, Grenloch, CrossKeys, Bunker Hill and Chapel Heights).

If you live in these areas, or any other area of South Jersey and have been charged with DWI or DUI, Refusal or any other alcohol or drug-related driving infraction, then contact my office immediately for a free consultation.  I treat every client with extra-special care and go over the evidence and facts of their case, in-depth, so that no stone is unturned in their legal defense.

 

 

 

 

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.