DWI Defense Update: Breath-test Refusal can be a Double-edged Sword in Drunken Driving Cases

You see it quite often in the news: “Driver charged with DWI and breath-test refusal.” But what is “breath-test refusal” and what does being charged with refusal really mean? On the face of it, it seems that some motorists arrested for driving under the influence simply decide not to let the police measure the percent of alcohol concentration in their bloodstream. Simple, right? Well, not that simple.

It certainly appears that refusing a breath test robs the police of what can be some relatively strong evidence. And one could say that this is a strategy many people adopt on the spot when arrested for driving while intoxicated. The trouble is, when the time comes to fight the inevitable DWI charges, the defendant now has at least two charges against him or her: the original drunk driving charge AND the breath-test (or blood-test) refusal charge.

As New Jersey DWI defense lawyers, I and my colleagues are asked by acquaintances and clients alike, “Is there any consequence to refusing a breathalyzer or blood test?” The answer is not what everyone may be hoping for, especially since there are no “Get Out of Jail Free” cards in the real world.

First of all, we’ll say up front that refusing to submit to a breathalyzer test to determine one’s blood-alcohol concentration (BAC) is within your rights as a citizen. And, as many who are reading this will have guessed by now, withholding that valuable information from the police and the prosecution will make things harder for the State to prove legal intoxication.

By refusing a breath test, a prosecuting attorney will have to rely on other evidence to prove to the court that you were drunk at the time of the arrest. Some of the facts or evidence that may be used against a defendant can include:
— Results of field sobriety testing — Eyewitness observations — Arresting officer’s statements
The trouble is that these “probable cause” pieces of evidence can be less than accurate when compared to actual chemical measurement of a suspect’s BAC. Most experienced DWI defense attorneys will challenge these in court, referring to them as insufficient evidence to support any kind of a drunken driving conviction. This may sound pretty good, but take a look at the flip-side.

Refusing to submit to a breathalyzer test means tat a defendant will have to fight the “refusal” charge as well as the initial DWI or DUI charge. The results are never guaranteed, since every case is unique. A good drunken driving defense lawyer will examine all facts, records and evidence against his or her client, and work for the most beneficial result.

A typical example of a refusal incident was in the news a while back. According to reports, a 34-year-old motorist from Jersey City was stopped in New Milford, NJ, for a traffic infraction, which then turned out to be a full-blown DWI arrest. Based on news articles, a patrolman was parked in his vehicle watching an intersection just after one o’clock on a Monday morning.

The police report indicated that the driver of a late-model Ford executed an illegal turn on red. Following the driver, the officer pulled the suspect over in what could have been a routine traffic stop. As the patrolman asked the driver for his license, insurance certificate and vehicle registration, he noticed that the man’s eyes appeared bloodshot and watery. The officer also noted that the man seemed to be nervous.

After interviewing the driver, the policeman detected the strong odor of alcohol on the driver’s breath. Suspecting that driver was intoxicated, the officer requested the man to exit his vehicle and take several of the standardized field sobriety tests. The driver must not have completed them to the officer’s satisfaction, because the man was taken into custody and arrested for drunk driving.

At police headquarters, the arrestee refused to submit to a breath test and was subsequently charged with DWI, breath-test refusal, and reckless driving, as well as a violation of a borough ordinance against no right turn on red.

The point here is that drivers arrested for drunk driving can and do refuse to submit to breath or blood tests. It’s instructive to remind readers that one should never automatically plead guilty to a DWI, DUI or refusal charge. Since every situation is unique, there are numerous defenses to various drunk driving scenarios, which is why one should always consult an experienced DWI attorney before making any decisions pertaining to how one pleas in court.

For anyone interested in understanding what the State of New Jersey currently constitutes probable cause for police to request a driver to take a breath test, just refer to State v. Wright 107 N.J. 488 (1987). For additional information, see State v. Sherwin 236 N.J. Super 510 (App. Div 1989), which covers the number of breath samples and consistency between the samples, all of which is required by New Jersey law.

Jersey City man faces DWI charges in New Milford, NorthJersey.com, February 2, 2012