Refusal of Breathalyzer Test

Posted By user, Uncategorized On November 16, 2020

Are you facing charges of refusal to submit to a breath test after being stopped on suspicion of drunk driving in New Jersey? A conviction of breath test refusal charges carries costly fines and penalties, including the suspension of your driver’s license.

Our New Jersey breath test refusal attorneys will look at the circumstances of your arrest and discuss your legal options. Our law firm has one of New Jersey State’s most experienced criminal defense teams.  We know how to zero in on the weaknesses in the prosecution’s case against you.

Contact us right away to schedule a free initial consultation regarding your rights. Our attorneys have many years of experience defending people facing charges related to driving while intoxicated.

The Implied Consent Law in New Jersey

Anyone who drives a motor vehicle on a public roadway in New Jersey furnishes his or her implicit consent to submit to a breathalyzer test if they are suspected of driving while impaired.

An officer must have reasonable grounds to think that an individual is driving while intoxicated to justify the imposition of a breath sample to determine the alcohol content of the driver’s blood.

If the driver refuses to submit to the test, the officer must inform the person arrested of the consequences of refusing to submit to the test.

What Constitute Breath Test Refusal?

Getting a New Jersey State driver’s license is another way you automatically give consent under the NJ Consent Law to give your breath sample when asked by police. Refusing to perform a breathalyzer test exposes you to a range of penalties and punishments under N.J.S.A. 39:4-50.4, commonly known as the New Jersey Refusal Law.

Here are common examples of what constitutes refusal and could result in a charge:

Your Silence— To consent to a breath test, an accused must show a willingness to perform the test. Although you have a constitutional right to remain silent, courts have held that this right does not apply to questioning regarding consent to a breath test. Accordingly, silence is almost always viewed as a refusal to submit to the test.

Giving Short Samples— While properly consenting to the test, sometimes people “fake” a blow, intentionally minimize their blowing or are simply unable to provide sufficient air volume or maintain volume for the necessary time period to register a valid reading. A refusal charge might be issued in such cases.

Outright Refusal— If an individual’s response is a flat “no”, a summons for refusing to provide a breath sample can be filed. Additionally, police are no longer required to read the second paragraph of the Standard Consent when there is an express refusal.

Delaying or Stalling —If an person engages in tactics that are obviously intended to delay the efforts to begin the test. In State v. Widmaier, 157 N.J. 475 (1999), the Supreme Court of New Jersey clearly stated that an individual suspected of driving while intoxicated has no right to delay breath testing; efforts to stall can, therefore, be interpreted as refusal.

Giving Conditional Consent— New Jersey courts have expressly held that anything short of a “yes” or “I will”, can be taken as a refusal. If an accused individual replies an officer with “if…”, “can you tell me…” or anything other than affirmative and unconditioned agreement to submit to the test, it can be interpreted as refusal.

To get a conviction under 39:4-50.4, the prosecution must demonstrate that: (1) the officer possessed probable cause to believe that the accused was driving while intoxicated or operating their vehicle under the influence of drugs; (2) the accused was arrested for DWI or DUI; (3) a proper request to submit a breath sample was made; and (4) the driver refused to comply.

Possible Defenses to Refusal Charges

Our attorneys are experts at uncovering issues to refute a charge of breath test refusal. We have found that silence can frequently provide a basis for bona fide arguments to avoid conviction. We ask questions that help us examine your case, including:

  1. Did officers have probable cause to believe that the accused was intoxicated to support their request to take a breath test?
  2. Did the officer comply with the law when notifying the driver of his or her rights regarding the breathalyzer test?
  3. Did the motorist actually refuse? Might there have been a language barrier?
  4. Did the motorist understand what they were being asked?

From having handled numerous such cases, our attorneys have the knowledge and experience to pinpoint issues revealing that the charge of breath test refusal is improper.

Breath Test Refusal Plea Bargaining

It is against the law to plea bargain a DWI charge in New Jersey.

Prosecutors are also prohibited from plea bargaining a first offense charge of refusal of breathalyzer. Nevertheless, a skilled defense lawyer may be able to identify legitimate problems with the arrest and police procedure.  This could result in dismissal of the charges

The prohibition on plea agreements does not apply to second or subsequent charges of refusal to submit to a breath test. The possibility of a plea deal is an important factor when handling these charges.  Conviction on a second or subsequent refusal charge carries license suspensions of two to ten years. A prosecutor can dismiss a refusal charge in consideration of a guilty plea on a related DWI.


An experienced criminal defense attorney could possibly provide a significant benefit to a client by negotiating with prosecutors to allow a plea agreement in a refusal case.

Possible Penalties for Refusal of Breathalyzer Test

First Offense

If an individual is convicted of his or her first offense of refusing a breath test, there are mandatory refusal penalties that the court must apply:

Fines — $300 to $500 plus a drunk driving enforcement fund surcharge

Suspension of License —Between 7 and 12 months. This suspension can run concurrently with a related DWI conviction at the court’s discretion.

Intoxicated Drivers Resource Center— First offenders are required to attend 12 hours of the IDRC alcohol education program.

Ignition Interlock—An ignition interlock will be installed on all registered vehicles for the timeframe of the license suspension plus an additional period, upon restoration of driving privileges, of 6-12 months.

Division of Motor Vehicle Surcharge—$1,000 a year for three years for the first offense.

Second Offense

The minimum license suspension for second offense is  two years. The court is obligated to impose other penalties as well.

Fines—$500 and $1,000 plus the mandatory drunk driver enforcement fund surcharge.

Incarceration—No mandatory jail term for a second offense of refusal.

Driver’s License Suspension—two years if convicted on a second refusal to submit to a breath test or for refusing after a prior DWI conviction.

Ignition Interlock— An ignition interlock device will remain in all registered vehicles for the period of the license suspension, plus an additional one to three years after license restoration.

Motor Vehicle Surcharges—An individual convicted of a second offense of refusing to give a breath test  pay a $1,000 DMV surcharge a year over three years. The license stays suspended until the surcharge is fully paid.

Third Offense

Tough penalties exist for a third conviction of refusal to take a breath test in New Jersey. These include:

Fine—$1,000 plus a $100 drunk driver enforcement fund surcharge.

Drivers License Suspension— ten years if convicted.

Intoxicated Drivers Resource Center— This program is mandatory. Additionally, the IDRC can set conditions on the restoration of the driver’s license including mandatory Alcoholics Anonymous.

Ignition Interlock— An ignition interlock device remains on all registered vehicles for the period of the license suspension, plus one to three years after license restoration.

Refusal in a School Zone

An totally separate offense from a standard refusal triggered in a school zone. Drivers are exposed to an enhanced charge of Refusal in a School Zone under N.J.S.A. 39:4-50.4a.

The incidence must have occurred within 1,000 feet of an elementary or secondary school. A charge can be placed regardless of whether or not the motorist knew that he or she was in a school zone

Call Your New Jersey Breath Test Refusal Attorney

Every case is unique. There are a variety of defenses to drunk driving and refusal charges. Don’t ever assume you need to automatically plead guilty to a DWI or refusal charge.  To speak to one of our attorneys about the circumstances surrounding your arrest, please call or e-mail Spodek Law Group today to get your free consultation with a lawyer.