Breath Test Refusal

Refusal to Submit to a Breath Test 39:4-50.4

NOTE: As of August 2011, If you drive on a suspended license due to “Refusal to submit to a breath test”, you may be subject to additional criminal charges. See below for more info.

As an attorney who is experienced in representing those charged with driving while intoxicated (DWI), one of the most common questions we are asked is whether or not there are consequences for refusing to submit to a breath test, and what an appropriate response should be in the event that a request is made during a DWI stop.

If you are asked to take a BAC test and refuse, you have a limited number of defenses with which to use. It may be that the officer who pulled you over didn’t have probable cause to do so. Additionally, alternative testing measures for DWI such as field sobriety tests and personal observation can often times be inaccurate and subjective, and, as your attorney, we will challenge the prosecution on such grounds. However, even though refusing will make if much harder for the prosecuting attorney to convict you on charges of drunk driving, bear in mind that should you refuse to take a BAC test, you may find yourself having to defend yourself against two charges: the original DWI/DUI as well as your refusal to submit to the BAC testing. Should you be convicted of both charges, your penalties could double. For a first offense conviction (in a non-school zone) on both charges, you could lose your license for 12-18 months. For a second offense, you could lose your license for 4 years. For a third or subsequent offense, you could lose your license for 20 years. As mentioned, all penalties apply to non-school zones. Should the offense occur in a school zone, all the penalties would double.

Should you refuse a BAC test, we will go over all the relevant records related to your charges and present any and all relevant issues to the judge on your case, all while trying to obtain a beneficial resolution.

However, if you are arrested and taken into custody, for whatever reason, this statement (click here to read statement) must be read to you exactly as it’s listed below in accordance with the Division of Motor Vehicles Standard Statement, in regards to an operator of a motor vehicle (N.J.S.A. 39:4-50.2(e), revised April 26, 2004).

Please be aware that the above is only an overview. Each case is unique and different, with it’s own set of circumstances and series of events. Therefore, never assume that you should, or should not, do something without first contacting an attorney for legal advice. If you feel you are in a situation where legal advice is needed, please don’t hesitate to contact us at 732-741-4448. We would be happy to set up a consultation with you, free of charge, to go over your particular case and to see where we may be of legal assistance.

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