Fighting A DWI Refusal Charge In NJ

“Can I fight DWI Refusal Charges in New Jersey?”

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DWI refusal 39:4-50.4a charges result from a situation in which you are pulled over for a DWI and are asked to submit a breath test reading, but refuse to do so.  Even if you choose not to respond to the officer, you will still be charged; “no response” still counts as a refusal. These charges are prosecuted under the same strict laws as all DWI charges, and the penalties are just as serious.

Refusing a breath test is not a good move from the standpoint of a person being pulled over.  If saying to the officer, “No… you can’t breath test me,” actually worked, there would be very few DWI convictions. Many motorists in New Jersey mistakenly think that refusing to submit to a breathalyzer will put them in a better legal position than taking the test. In fact, the police can charge you with a DWI refusal for refusing to take a breath test. Further, a refusal can be taken as an admission that you were, in fact, driving under the influence. In New Jersey, we have “implied consent” which means that, by driving in this state, you have agreed to abide by the traffic laws and consent to the taking of breath samples if you are suspected of driving while intoxicated. A refusal is therefore deemed a violation of the law and you face serious consequences if convicted.

Additionally, you give yourself far fewer defense options when it actually comes time to deal with this case in court.  Challenging the reported BAC reading and the processes used to test your breath are excellent DWI defenses. Even so, while DWI refusal 39:4-50.4a are harder to beat than normal DWI charges, they can still be beaten.

The first logical defense for a refusal charge is to challenge the motor vehicle stop itself. Police officers make errors frequently, and if they didn’t pull you over for legitimate reasons, your case should be dismissed. Almost every DUI case begins with the police pulling over the driver of a vehicle for an alleged traffic infraction, basically some type of violation of the motor vehicle code. The infraction can be as simple as having a broken tail-light, obstructed windshield, or not using a turn signal. If the police officer articulates any reason for lawfully pulling you over, the stop may be considered legal. On the other hand, if there was no articulable reason to conduct the motor vehicle stop in the first place, your attorney can argue that it’s an illegitimate stoppage, and all that results from the stoppage will be discarded in court. That means any DWI charges, refusal, or even possession charges are gone.

Another way to fight refusal charges is to challenge the probable cause for even asking to test your breath. Once stopped, the officer asks you questions, observes your physical appearance and general demeanor, which may lead them to believe that you are driving under the influence. Some common symptoms cited by police are “blood-shot and watery eyes,” “slurred” speech, or “slow” and “fumbling” movement. Whatever visible signs of intoxication the officer maintains can give rise to having you exit the car, perform field sobriety tests, and eventually, requesting that you submit to a breathalyzer test. Now, if you actually passed the field sobriety tests or if the officer failed to administer the field sobriety tests correctly, you may be able to have your charges dismissed. That means counting incorrectly, or even explaining the test incorrectly.

Once at the station, the officer advises you of the need for you to provide a breath sample. This is because by you driving in this state, you have implicitly agreed to provide breath samples upon request. New Jersey uses the Draeger Alcotest for blood alcohol concentration. If you refuse to take the breath test, you will be charged with a DUI refusal under the theory of implied consent, which is explained in the statute N.J.S.A. 39:4-50.2. Basically, no one has the legal right to refuse a breath test when operating a motor vehicle in New Jersey.

It is important to note that not all refusals are the same. Rare is the person that says “I refuse to provide a breath sample.”  Instead, the refusal happens in different ways, some verbal and others non-verbal. For example, some people do not adequately and continuously blow into the breathalyzer. Failure to provide the two required breath samples may be charged as a refusal. Similarly, making your consent conditioned upon the happening of an event, such as calling your attorney or using the restroom, is also grounds for DWI refusal charges.  Even if you choose to say nothing, believing you have the right to remain silent (you do not in this particular situation), it is a refusal under the law in New Jersey.

When charged for refusal, you are expected to sign a form and be explained the details of your charge, to make sure you are fully informed and aware of what you are doing. Basically, the state needs to ensure that drivers know they are required to provide breath samples and that by refusing to take the Alcotest, they will face penalties outlined in Section 39:4-50.4a. As such, if you willingly fail to take a breathalyzer, the officer will read a series of questions to you and ask you again to comply. New Jersey law requires that you be read two sets of statements, the Standard Statement and the Additional Statement. This provides yet another opportunity for a potential defense. Essentially, if the officer doesn’t explain refusal correctly, or makes an error on the form, you can often have the charges dismissed.

There are a lot of options when it comes to how to beat refusal charges; it’s just a matter of contacting an experienced NJ DWI lawyer in order to handle the matter.

In order to obtain a conviction for refusal, the prosecutor must establish that the officer had a valid reason to conduct the traffic stop; there was probable cause to believe that you were operating a car while under the influence of alcohol or drugs; you were arrested for DWI and the police asked you to take a breath test; you were read all of the required statements and given the knowledge therein about refusal to submit to a breathalyzer; and you refused to submit to the Alcotest. The various elements of these cases represent distinct opportunities to invalidate the state’s case against you.

What is the penalty for refusing to take a breathalyzer test in NJ?

If convicted of refusal to submit to a breath test in New Jersey, you will be punished accordingly. The prescribed sentence is directed by law under N.J.S.A. 39:4-50.4a. For a first offense refusal, your right to drive in New Jersey will be suspended until you provide proof that you installed an interlock ignition device, which must remain installed in your vehicle for 9 to 15 months. For a second refusal offense, your right to operate a motor vehicle in this state will be suspended for a minimum of 1 year and a maximum of 2 years, after which you will be forced to have an interlock device in your car for 2 to 4 years. Lastly, for a third or subsequent refusal offense, you will be forced to give up your right to drive for 8 years and be required to have an interlock ignition device installed for 2 to 4 years after license restoration.

Additional penalties include attending intoxicated driver’s resource classes (IDRC). Also, fines of $300-$500 for the first offense, $500-$1000 for a second offense, and $1000 for a third or more, must be imposed. This is in addition to any mandatory state penalties, court costs, insurance surcharges, and points on your license.

A final note: DWI refusal only applies to breath testing.  It does not apply to blood testing. Refusal to submit to a blood test is not a valid charge. There are circumstances where the State can take your blood and others where they can not. It is essential that you contact a DWI who knows New Jersey law to navigate these sometimes complex issues.

If you received a DUI refusal charge, the good news is, there are countless effective ways to fight your case. Do not beat yourself up about it. Instead, call our office to discuss your unique case with an experienced New Jersey DWI Refusal Lawyer at The Tormey Law Firm and get help executing your best defense. Feel free to call our office any time at (201)-556-1570 for a free consultation.

“These videos explain how we will fight against your DWI charges:”

Challenge the Initial Motor Vehicle Stoppage
Challenge the Field Sobriety Tests
Challenge the 20 Minute Observation Period
Challenge the Alcotest 7110 machine itself


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Learn More About How to Fight Your Charges

If you've been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.

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