DWI Refusal

Refusal to submit to a breath test in the state of New Jersey is a serious offense, an offense which you cannot afford to tackle without representation from an experienced DWI attorney. As defined in N.J.S.A. 39:4-50.2, β€œany person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of N.J.S.A. 39:4-50.” The reason for such an implied consent statute is that refusal deprives the police of vital evidence of guilt and frustrates the legislative goal of combating intoxicated drivers.

Elements of a Refusal Offense. There are four elements under N.J.S.A. 39:4-50.2 that must be present in order to be charged with refusal to submit to a breath test in the state of New Jersey. The first of these is that the arresting officer must have had probable cause to believe that the defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs. Probable cause itself has three sub-elements, control or driving, place of operation, and under the influence. In terms of controlling or driving, this just means that someone is behind the wheel that may be intoxicated, it does not matter that the car actually be in motion. A failed attempt to operate a motor vehicle is sufficient for an attempt. The place of operation upon which this offense can be committed is virtually any and all roadways in the state including private ones. However, the arresting officer must have probable cause to believe that the operation occurred first on a public or quasi-public area. Under the influence means simply that the arresting officer must have probable cause to believe that the offender was under the influence of drugs or alcohol.

The second element of this offense, once it is shown that the arresting officer had probable cause based on operation, place of operation, and reasonable belief that the operator was under the influence, is that the defendant must be arrested for driving under the influence. It is not necessary in relation to the element that drunk driving offense did not occur in the presence of the arresting officer provided that the probable cause still exists. The third element is that the officer requested the defendant to submit to a chemical breath test and informed the defendant of the consequences of refusing to do so. The final element, then, is that, having been informed of his rights and consequences, the defendant refused to submit to the test anyway.

Common Reasons for Refusing. There are a number of ways that the arresting officer may be able to deem your actions as sufficient to constitute a refusal to submit to a breath test. The first possible way is that the defendant remain completely silent when told of his or her rights. Silence is sufficient evidence to constitute a refusal to submit to a breath test. Another way to constitute refusal is the failure to provide a sufficient number of breath samples. The Alcotest 7110 is set up to receive 11 samples at one time. If in this period, the person suspected of driving while intoxicated fails to provide two adequate samples, the arresting officer, provided there is no machine error, will often deem this failure as refusal to submit to a breath test. Several more specific ways that the breathalyzer may be compromised is if the defendant tries to blow half samples into the machine, meaning the person purposefully tries to not blow the required amount of air. The defendant may also try to delay the administration of the test in order to allow for them to sober up. If a person actively hinders the test from being administered in a timely manner this will be deemed as a refusal. There is also no defense for refusal to submit to a breath test if the suspect does not speak English, the implied consent rule still applies.

Fines, Jail & Other Penalties If Found Guilty of Refusal

The penalties for refusal to submit to a breath test are the same as those for taking a breath test and being over the legal limit as defined in N.J.S.A 39:4-50a. For a first offense refusal, you will be subject to fines ranging $300 to $500, a mandatory surcharge of $1000 per year for 3 years and a loss of license for a period of between 7 months and 1 year. There is also the possibility of up to 30 days in jail for a first offense DWI, but this is usually not enforced by the judge. Judges generally prefer to convert this sentence into community service or time in the IDRC (the Intoxicated Driver Resource Center).

For a second offense refusal, the fines increase from between $500 and $1000. Second time offenders are required to complete thirty days of community service, the equivalent of 180 hours. A second offense refusal carries with it a period of incarceration ranging from two to ninety days. However this period of incarceration need not necessarily be served in jail and the minimum time that must be served is two days in jail. The loss of license associated with a second offense refusal increases also to a two-year period and the surcharge of $1000/year for three years still applies.

For a third or subsequent offense, the surcharge increases to $1500/year for three years. The time in jail increases from 90 to the possibility of 180 days in jail. There is an automatic fine of $1000, instillation of an ignition interlock device for 1-3 years, and a mandatory suspension of your license for a period of ten years.

How Can We Help You?

These are serious offenses and if you or a loved one are charged with a first, second, or third offense refusal, you cannot afford to tackle it alone. Here at The Law Offices of Jonathan F. Marshall, we have over 100 years of collective experience defending against DWI and Refusal charges, including attorneys that were former prosecutors from counties all around the state. In addition to having four of our lawyers certified in the operation of the Alcotest 7110, the breath test device used in the state of New Jersey to measure BAC, we also boast three of only five attorneys in the state that are Certified Field Sobriety Instructors, instructors that know the ins and outs of the protocol that must be followed by police in performing Field Sobriety Tests. So please, if you or a loved one has been charged with a first, second, third or subsequent Refusal offense in the state of New Jersey, do not hesitate to contact one of our conveniently located offices around the state for a free consultation with an experienced attorney today.