Can I refuse to take a breath test if I am pulled over on suspicion of DUI/DWI?
In a word: No. If you operate a motor vehicle on a public road or highway in New Jersey you are giving implicit consent to submit to a breath test if pulled over on suspicion of DUI/DWI. Although a police office needs reasonable grounds to believe that you are driving under the influence to request a breathalyzer test, if they request this you must comply.
The penalties for refusal are severe.
https://law.justia.com/codes/new-jersey/title-39/section-39-4-50-2/
First offense
https://law.justia.com/codes/new-jersey/title-39/section-39-4-50-4a/
- A fine of $300 to $500 and a mandatory drunk driving enforcement fund surcharge.
- License suspension for 7 to 12 months. The suspension may run concurrently with a related DWI conviction at the judge’s discretion
- Two 6-hour classes at the Intoxicated Driver Resource Center over two consecutive days
- An ignition interlock device installed on all registered vehicles for the period of the license suspension plus an additional period upon restoration of driving privileges of 6 to 12 months
- $1,000 Division of Motor Vehicles surcharge annually for three years
Second Offense
https://law.justia.com/codes/new-jersey/title-39/section-39-4-50-4a/
- A fine of $500 to $1,000 and a mandatory drunk driving enforcement fund surcharge.
- License suspension for 2 years. The suspension may be imposed for a second refusal to submit to a breath test or for refusing after a previous DWI conviction.
- Ignition interlock device installed on all registered vehicles for the period of the license suspension plus an additional 1 to 3 years after license restoration.
- $1,000 Division of Motor Vehicles surcharge annually for three years and the individual’s license will remain suspended until the surcharge is paid in full.
Third Offense
https://law.justia.com/codes/new-jersey/title-39/section-39-4-50-4a/
- A fine of $1,000 and a mandatory drunk driving enforcement fund surcharge.
- License suspension for 10 years.
- Ignition interlock device installed on all registered vehicles for the period of the license suspension plus an additional 1 to 3 years after license restoration.
- Participation in an IDRC alcohol education program. The IDRC may impose conditions on the restoration of the driver’s license, like mandatory attendance at AA meetings.
A prosecutor must establish the following in order to obtain a convention for refusing a breath test:
- The arresting officer had probable cause to believe that the defendant was driving or operating under the influence
- The defendant was arrested for DWI/DUI
- There was a valid request to submit to a breath test
- The defendant refused
In New Jersey the courts have ruled that there are different ways to prove that a defendant refused to submit to the test, such as:
- Silence: The defendant does not have the right to remain silent as to a question regarding consent to a breath test. Silence will be viewed as a refusal.
- Short Samples: If an accused fakes the test by blowing a small sample or is unable to provide sufficient air volume to register a valid reading
- Verbal Refusal: If you say “no” that is a refusal.
- Delaying or stalling: If you engage in any conduct that is obviously intended to delay the collection of the sample, this may be viewed as a refusal.
If you have been charged with a DWI/DUI contact the defense attorneys at the LaBletta & Walters immediately to get them involved in your case. Our attorneys can work with you to determine if you have a viable defense to the charge.