New Jersey DWI Update: Breath Test Refusal is a Chargeable and Potentially Costly Offense

As New Jersey drunk driving defense lawyers, my law firm is dedicated to assisting drivers who have been accused or otherwise charged with operating a motor vehicle while under the influence of alcohol or some other substance which may or may not have caused impairment of the motorist’s mental or physical abilities. As experienced trial attorneys working in the area of drunken driving law, we have worked hundreds of DWI cases in our many years of practice.

Defending motorists against drunken driving charges takes skill and training, which the lawyers in my firm put to use every day. Of the many potential charges that police may press against a driver, breath test refusal is one of several that are probably not well understood by the general public. What many drivers may not even recall is that the issuance of a driver’s license in the state of New Jersey comes with an implied agreement on the part of the driver that essentially means any driver who is suspected of driving drunk shall provide a breath sample when requested by police.

By being licensed to drive a motor vehicle in the Garden State, every driver implicitly accepts the terms and conditions of what is known as the “New Jersey Consent Law.” After doing so, a driver who is accused of DWI and will not provide a breath sample to officers can be hit with a “breath test refusal: charge as well. This is laid out in what we typically refer to as the New Jersey Refusal Law the penalties of which are stated in New Jersey legal statutes N.J.S.A. 39:4-50.4.

For trial lawyers such as ourselves, we understand the finer points of the law and often attempt to find fault with the process or manner in which a breath test refusal charge may have been arrived at. Some questions that we typically ask a motorist who has been charged with refusal is whether or not he or she truly did “refuse” to give a sample. Or if the driver actually understood at the time of the arrest what the police were requesting from him. There may even be some defense available in whether or not the police attempted to “cure” the alleged refusal once the motorist had supposedly declined.

From the officer’s standpoint, our job as DWI defense attorneys is to find errors in carrying out the request for a breath sample. For instance, did the patrolman actually have a reasonable cause to believe that the driver was intoxicated, which may or may not have made for a valid breath sample request. Similarly, did the policeman adhere to the law when he advised the motorist of her rights vis-à-vis taking a breathalyzer test?

Regardless of the defense for such a charge, it is often important to remember that if convicted of breath test refusal following a drunk driving arrest, the penalties if convicted can be significant and should not be shrugged off. It is also instructive to note that refusing to give a breath sample may take several forms, although the defendant may not actually realize what he or she was doing at the time.

Take one instance that occurred earlier this year where a driver who was taken into custody following a traffic accident was charged with breath test refusal after he could not provide the minimum required breath sample to police. According to news reports, the crash took place along a stretch of Mountain Boulevard in Somerset County a little after 7pm on a Sunday evening. Not much was explained in the news article, except to say that the 33-year-old Watchung resident was taken into custody by local police and delivered to police headquarters for processing. At that time, the suspect was asked to provide a breath sample but could not provide the necessary volume of breath for a valid test to be performed.

There was no mention as to whether the driver was physically injured to the extent he could not deliver the volume of breath needed; however, it was stated that police took his inability to provide a sufficient sample as grounds for a breath test refusal charge. Based on the news report, the man was eventually released to a relative pending a court appearance.

DWI charge follows crash on Mountain Boulevard,, March 22, 2013

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