Refusing a Breathalyzer Test: An Option that Should Not be Exercised Without Due Consideration

As drunk driving defense attorneys, I and my staff of skilled trial lawyers have been representing motorists accused of operating a motor vehicle while intoxicated for many years. Here in the Garden State, there are many different ways in which to be charged with some kind of alcohol-related driving offense. As a former municipal prosecuting attorney, and now as a DWI defense lawyer, I understand that some individuals should never have been accused of drunken driving in the first place, while others simply could benefit from the representation that my law offices provide.

Although some people may consider a straight DWI-DUI charge as the worst possible accusation that a driver could receive from the police, it is equally serious when a motorist — for whatever reason — chooses not to submit to a breath test when a police officer requests it. For this reason, I and my colleagues always recommend that anyone having been charged with breath test refusal seek an experienced drunk driving attorney before they step foot in a courtroom.

While it may seem to be a good choice to some drivers, refusing to submit to a breath test here in the Garden State is usually treated with the same enthusiasm by prosecutors as any other DWI or DUI arrest. As we tell many of our clients who choose this route, breathalyzer refusal a serious offense that one cannot afford to take without proper legal representation.

As laid out in the New Jersey statutes, every driver is deemed to have given his prior consent to the taking of a breath sample to determine the individual’s blood-alcohol content (BAC) when he or she accepts a driver’s license from the state. Assuming that the arrest and the taking of a breath sample are done in accordance with the law, refusing to provide a breath sample at the request of a police officer (who has reasonable grounds to believe a DWI violation has occurred) deprives the state of vital evidence of guilt.

As far as the legal grounds to charge a motorist with breath test refusal, there are four separate elements involved, per N.J.S.A. 39:4-50.2. These include: 1) that the arresting officer must have probable cause to believe the defendant was actually operating a motor vehicle while intoxicated by alcohol; 2) the defendant must have been arrested specifically for DWI even though the offense may not have happened in the presence of the arresting officer (though probable cause must still exist); 3) that the officer requested the motorist to submit to a chemical breath test (which includes telling the driver what the consequences are for refusing to provide a sample); and 4) the defendant’s having chosen to refuse to submit to the test in spite of being informed of his rights and consequences of that refusal.

When it comes to DWI stops that result in breath test refusal, there are several ways that a motorist can be charged with refusing a breath test, aside from verbally expressing to the officer that he or she chooses to decline the request. One typical scenario is when the defendant remains completely silent when advised of his or her rights. Many people charged with refusal may not have realized that silence on their part is akin, legally, to a refusal to submit to a breathalyzer test.

Another way for the police to charge a driver with refusal is the defendant’s failure to provide a “sufficient number” of breath samples. For example, the Alcotest 7110 breath testing device is designed to receive 11 breath samples at one time. If, during this period — and assuming no machine error at the time — the suspect driver fails to provide at least two “adequate” samples, the police can deem the driver as having failed to submit to a breath test.

There are many more caveats to refusing a breath test, but since the penalties for refusal are essentially the same as having taken a breath test and been found to be over the legal limit and charged with DWI, it is imperative that a person who has been charged, for any reason, with refusal to contact a qualified legal expert in defending drunken driving cases.

With hundreds to thousands of dollars in fines, many months of license suspension and even the possibility of jail time, there is not good reason to walk into a courtroom without the proper legal representation. As experienced DWI-DUI attorneys, our law firm highly recommends consulting a skilled DWI defense lawyer for any drunken driving or drug DUI offense. It just makes sense.