New Jersey DWI Lawyer Blog
Being charged with DWI is not a something that any driver welcomes, but occasionally a motorist faced with the possibility of a drunken driving summons will choose to decline the usual police request for a breath sample. To many people, given the option of providing or not providing a law enforcement officer with a breathalyzer sample seems like a no-brainer.
Some drivers may think, “Why provide the cops with any evidence that could be possibly be held against me later in court? If they give me the option, of course I’ll opt to refuse.” But is this the best choice? Many times the consequences of withholding a breath sample can be just as costly as being charged with a DWI due to a blood-alcohol content (BAC) reading over 0.08 percent.
As New Jersey drunk driving defense attorneys, my staff and I have represented hundreds of individuals in court, many of who have been accused of driving while intoxicated by alcohol, impaired driving while under the influence of doctor-prescribed drugs, or the aforementioned breath test refusal.
Here in the Garden State, some drivers would naturally consider a straight DWI charge as the worst possible scenario. However, it can be an equally serious situation when a motorist for whatever reason decides not to submit to a breathalyzer test when requested by a municipal patrolman or a state trooper. For anyone who has chosen this route, my colleagues and I always recommend speaking with an experienced DWI defense lawyer before entering any courtroom.
Regardless of what one perceives as beneficial, a driver who refuses a breathalyzer test in New Jersey usually ends up being pursued by local prosecutor’s offices with the same zealous fervor as individuals who are charged with any other DWI-DUI offense. Let there be no mistake here, breathalyzer refusal is typically just as serious a charge as drunk driving and usually should not be approached without proper legal representation.
The reason why is based in our state’s legal statutes, which clearly state that every driver who accepts a driver’s license from the State of New Jersey is automatically deemed to have given his or her prior consent to providing a breath sample when requested by a police officer. Quite simply, as long as the arrest and the taking of a breathalyzer sample are carried out in accordance with state law, refusing same deprives the state of vital evidence of guilt.
When it comes to traffic stops that result in a drunk driving arrest followed by the accused motorist refusing to take a breath test, there are a number of ways in which that driver can be charged with refusal. Aside from verbally telling the patrolman that one chooses not to provide a sample, some drivers have been known to remain completely silent when advised of his or her rights. Unfortunately for some people, from a legal standpoint, that silence can be considered akin to an outright verbal refusal to submit to a breathalyzer.
Another way for drivers to be charged with refusal is based on the suspect’s failure to provide what the prosecution might refer to as a “sufficient number” of breath samples. In other words, with the Alcotest 7110 breath testing device, these machines are typically designed to receive 11 breath samples at one time. Assuming no machine error at the time of the collection, if the driver fails to provide at least two “adequate” samples, the police can deem that individual as having failed to submit to a breath test.
But these are just a few of the ways of being charged with breath test refusal. What usually gets many defendants’ attention is the hundreds or thousands of dollars in fines, months of driver’s license suspension, and even the possibility of jail time for their decision to refuse a breath sample. In fact, it’s no secret that the penalties in New Jersey for refusing to provide a breath sample are actually the same as those for taking a breath test and being found over the legal limit as defined in N.J.S.A 39:4-50a.
For instance, a first-offense refusal will subject a driver to fines ranging from $300 to $500, with a mandatory insurance surcharge of $1000 per year for three years, plus the loss of one’s driving privileges between seven months on up to one year. And, there is always the possibility of up to 30 days in jail for that first offense; although this portion of the law is typically not enforced by most judges (community service or time in the Intoxicated Driver Resource Center is usually ordered in lieu of jail time).
On a second-offense refusal, a convicted defendant will often see his or her fines increased, which will range from $500 and $1000. Plus second-time offenders are required to complete 30 days of community service, which usually equates to 180 hours. Jail time is also specified, though the maximum of 90 days in jail is not often ordered; but a minimum of two days in jail can often result. License suspension jumps to two years, and the insurance surcharge of $1000 per year for three years applies as well.
Convictions for a third-time refusal offense only raise the stakes higher. All of which may explain why many people take the opportunity to consult with a legal professional skilled in DWI-DUI defense. With so much at stake, there is no reason not to talk with a lawyer who has experience in defending motorists accused of drunk driving and breath test refusal.