Author Clark & Noonan, LLC
Posted August 12, 2022
Category Criminal Defense, DUI/DWI Defense
Being pulled over by a police officer can be overwhelming, especially if they ask you to take a breathalyzer test. You might be tempted to refuse. However, you should carefully consider the consequences of refusing a breathalyzer and compare them to other potential outcomes of your specific situation.
If you have questions about your case and need answers now, call Clark & Noonan, LLC. Our DUI and DWI lawyers in Monmouth County, NJ have more than 30 years of experience they will use to help you. Call 732-303-7857 today for a free consultation.
Your Rights to Refuse a Breath Test in New Jersey
Under New Jersey Law (NJSA 39:4-50.2), drivers must submit to an alcohol breath test upon request by a police officer. Refusal of a breathalyzer test will not necessarily avoid a drunk driving charge. Instead, you may face additional consequences, including criminal penalties.
New Jersey law does not allow police officers to forcibly take a chemical test or collect a specimen against the physical resistance of a person. However, you will still face consequences for refusing to submit to the test.
Thus, while it is possible to refuse a breath test, you do not have a legal right to do so. In New Jersey, you are required to submit to a breathalyzer if you are a driver of a vehicle.
What Does It Mean to Refuse a Breath Test?
A refusal does not necessarily mean that you flat out said no to a breath test. You may take other actions that constitute a constructive refusal, including:
- Remaining silent when asked to take a breathalyzer
- Showing unwillingness to physically take the test
- Purposefully manipulating the test by performing a “fake” blow (short sample)
- Stalling or delaying the test
- Failing to be affirmative with your answer (anything other than “I will” or “yes”)
- Making your breath test conditional
Other Rights When Taking a Breathalyzer Test
You do have additional rights provided by New Jersey implied consent laws. A police officer must inform you of those rights. First, you have a right to receive a copy of the results of any chemical test you take. Second, you have a right to have chemical tests of your breath, urine, or blood made by a person or physician of your selection at your own expense. You should keep these rights in mind if you are in a situation where an officer is asking you for a chemical test.
Implied Consent Law in NJ
All drivers in New Jersey who are on public roads, streets, highways, or quasi-public areas (such as parking lots), are deemed to have given consent to breathalyzers to determine the content of alcohol in their blood. This is called “implied consent.” That means, by simply driving in New Jersey, you consent to take a breathalyzer if an officer requests.
Penalties for Refusing a Breathalyzer in New Jersey
Refusal to submit to a breath test has consequences in New Jersey. The penalties increase for each subsequent offense.
Penalties for a First Offense
The first time you refuse a breathalyzer in New Jersey, you will face a fine of between $300 and $500. Your driver’s license will be suspended until you install an ignition interlock device (IID) in your vehicle. An IID requires you to test the level of alcohol in your breath prior to driving. You must also spend a minimum of six hours per day for two consecutive days in an Intoxicated Driver Resource Center, which provides drunk driving education.
Penalties for a Second Offense
For a second breathalyzer refusal, you will face a fine of between $500 and $1,000 and a one-to-two-year license suspension following the installation of an IID in your vehicle. You must spend 48 hours consecutively in detainment in an Intoxicated Driver Resource Center. You will also have mandatory community service and a jail term of between two and 90 days.
Penalties for a Third Offense
For a third or subsequent offense, you will face a fine of $1,000 and an eight-year license suspension following the installation of an IID in your vehicle. You must also attend an alcohol education program and additional alcohol counseling at the Intoxicated Driver Resource Center. You will have a mandatory county jail sentence of 180 days.
Ignition Interlock Device Installation
If you refuse a breathalyzer, you will be required to serve a license suspension period. After that, you will have to install an IID in your vehicle. The IID must be in your car for a period of between nine and 15 months after the restoration of your drivers license for a first offense. You will have to use an IID for two to four years for subsequent offenses.
Additional Expenses for Refusal
Your fines will not be the only financial consequences if you refuse a breathalyzer. You will have an automobile insurance surcharge of $1,000 per year for three years for first- and second-time offenses. A third offense will result in a $1,500 surcharge annually.
Another financial penalty includes a $100 surcharge donated to the Drunk Driving Enforcement Fund. You will be required to pay this mandatory donation if you refuse a breath test.
What Must the State Prove?
In order to convict you of refusal to take a breath test, the state must prove all elements of the crime beyond a reasonable doubt. That includes the following factors:
- There was probable cause to be suspicious that you were intoxicated while driving
- You were arrested for a DUI or DWI
- A police officer requested that you submit a breath sample
- The police officer adequately explained the process and your rights
- You refused to take the breath test
Reasonable Grounds to Pull You Over
A police officer does not have a right to pull over any vehicle and request a breath test. They must have reasonable grounds to believe you committed a motor vehicle violation that would meet the probable cause standard. Probable cause is determined on a case-by-case basis but is related to how a reasonable person would act in a similar situation.
Consequences of Breath Test Refusal vs. Penalties for a DUI/DWI
If you are intoxicated or have a blood alcohol concentration (BAC) of over 0.08%, then you may face a DUI or DWI charge. Those penalties are quite harsh as well.
For a first-time DUI, you will face a fine of between $250 and $400, incarceration of up to 30 days, driver’s license suspension for three months, installation of an IID, mandatory alcohol education, and an automobile insurance surcharge of $1,000 for three years. If your BAC was over 0.10%, you will receive a fine of up to $500 and a driver’s license suspension for up to one year.
For a second DUI, you will face a fine of between $500 and $1,000, incarceration of up to 90 days, a one- or two-year license suspension, referral to an alcohol abuse and education program, 30 days of community service, an automobile insurance surcharge of $1,000 for three years, and required installation of an IID for between two and four years.
For a third DUI, you will face a fine of $1,000, incarceration for 180 days, an eight-year license suspension, 30 days of community service, alcohol abuse and education program completion, an automobile insurance surcharge of $1,500 for three years, and required installation of an IID for between two and four years.
Like refusal to take a breath test, a DUI conviction also involves additional fees, including a $100 surcharge deposited in the Drunk Driving Enforcement Fund, an Intoxicated Driving Program fee of $100, a Violent Crimes Compensation Fund fee of $50, and a Safe and Secure Community Program fee of $75.
A DUI & DWI Attorney Can Help with Your Case
The DUI defense law firm of Clark & Noonan, LLC has the resources and experience to help you handle a difficult legal situation. If you refused a breath test or tested positive for alcohol, you still have options. You may be able to reduce your charges to a lesser offense through negotiation with the prosecution or get the charges dismissed entirely. We are here to help you decide what is best for you.
Call us today at 732-303-7857 for a free consultation and to learn about your options.