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Refusal to submit breath test 39:4-50 and 39:4-50.2 – NJ DWI Lawyer

“This is an example of a DWI refusal case that I was able to have thrown out of court. Loopholes like this exist in many DWI and refusal cases.”

Drunk Driving AttorneyI recently represented a client in Newark NJ who was accused of DWI (driving while intoxicated) and refusal to submit a breath test.  Refusal to submit a breath test is typically the same thing as blowing a positive result into the Alkatest machine.  You can’t get out of the DWI by refusing to take a test, they just give you a virtually identical charge.

She faced a 7 month license suspension on the refusal charge and a three month suspension on the DWI itself, as she was charged with both.  Obviously, this is coupled with potential jail time and a pile of fines/insurance surcharges.

My client was driving down the New Jersey Turnpike and hit a guardrail.  The car was badly damaged, the airbag was deployed, and my client might have been experiencing the symptoms of a concussion as well.  Logically, she was taken to the hospital to be cared for.

The police officer claimed to have smelled alcohol on the defendant’s breath, so he arrested her for DWI.  He also requested that she take a blood or urine test at the hospital, a request that the defendant refused.  Remember, a charge for refusal applies to breath testing.  At no point do the police have the right to demand your blood or urine.  In addition, there needs to be probable cause for testing someone’s blood alcohol content.  This is usually established by conducting a series of field sobriety tests, where someone has the opportunity to stumble, fall, say something dumb, or do any other number of things which would give the officer probable cause to conduct a breath test.  The officer never conducted a series of field sobriety tests for my client.

The refusal charge was immediately thrown out, since the officer never once asked for a breath test.  If he had asked for a breath test, we still could have fought to suppress the results  based on the lack of field sobriety tests, which would give the officer probable cause.  Since the defendant never gave blood or took a breath test, there would be nothing to prove her intoxication other than field sobriety tests… which clearly did not even exist.

We ended up accepting a plea bargain in this case, in which the defendant plead guilty to careless driving and took a very short license suspension.  Considering that an accident had taken place, her punishment could have been extreme.  We were very happy to get all DWI related charges dismissed and celebrate this victory.