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Refusal to Take a Breath Test, NJSA 39:4-50.4a

If you get pulled over for a suspected DWI, and you are given the option as to whether or not to take the breath test (more commonly known by the brand name Breathalyzer), what would you choose?  If you know you haven’t been drinking, your first reaction is to consent to the test and clear yourself.  But what if you have had a few drinks?  You worry that consenting to the breath test could get you into trouble; even if you think you haven’t had that much to drink.  Think about it – you’re pulled over by an officer, and he tells you he suspects you are driving while intoxicated.  Then, he actually asks you if you will consent to taking a breath test. “Hey,” you think, “I didn’t know that I can refuse taking a breath test.  This is easy; of course I’m going to say no!”


New Jersey law requires every driver using the roadways in the state to submit to a chemical breath test when requested. New Jersey law imposes harsh civil penalties, fines, motor vehicle surcharges, and a long suspension of driving privileges if a driver refuses to take a breath test.

New Jersey has an implied consent law, and it requires drivers to take a breath test if they are pulled over on suspicion of DWI. You can be arrested for failing to take a breath test because when you sign for your driver’s license, you agree to submit to a test for drugs or alcohol when asked by law enforcement.  Hopefully you’ve listened carefully, because the officer will read you the “Implied Consent” warning before he asks you to submit to the requested tests.

By now you must be thinking, “Why would an officer ask for my consent if it’s a crime to refuse it?”  Well, remember, you have the right to refuse to take the test, but doing so can actually be considered an admission of guilt.

It is important to know that refusal to take a chemical breath test is a separate offense for which the court imposes separate punishments in addition to those for drunk driving. The State must prove each of the elements below by a preponderance of the evidence before the court can convict you of a breath test refusal.

In general, there are 5 elements in a refusal that must be proved by the State by a preponderance of the evidence.  These include:

1. Probable cause to believe that the defendant operated a motor vehicle while under the influence of alcohol.

The police officer must have probable cause to arrest a driver and charge him with a DWI. What this means is that the officer is not allowed to just pull over a car, and go “fishing” for DWI drivers. A probable cause determination is based upon the arresting officers’ perceptions, training, experience, and consideration of the totality of the circumstances.

2. Arrest of the defendant.

In order to be charged with refusal, the driver must be arrested and charged with a DWI. The arrest of the DWI driver must be supported by probable cause.

3. Refusal by the defendant to submit to a chemical breath test.

Due to the circumstances of a suspected DWI, perceived legal problems, and general state of intoxication, many drunken driving defendants will engage in conduct which can constitute a refusal to submit to a breath test. The law has well established that anything short of an unqualified, unequivocal consent to a police officer’s request for a breath test constitutes a refusal to do so.

Typical Refusal Scenarios:

  •  Silence.
    When the arresting officer asks the defendant whether he or she will submit to a breath test, the defendant remains silent. You do not have the right to remain silent in this case. Silence is sufficient evidence to constitute a refusal to submit to a breath test. State v. Sherwin 236 N.J. Super. 510 (App. Div. 1989)
  • Insufficient number of breath samples.
    A DWI driver must provide at least 2 samples of their breath and the failure to do so constitutes a refusal. Why? Two samples are required in order to be assured of accurate, consistent blood alcohol results.
  •  Short Samples.
    A short sample is considered no sample at all, and can constitute sufficient evidence to satisfy the refusal elements. Remember, you are not the first person to pretend to blow into the device or blow a very short breath. The law has been dealing with this for a long time
  • Delay in the Administration of the breath test.
    Thinking you have the right to speak to your attorney to delay the breath test is incorrect. A delay by the DWI driver to take the test for any reason, even if you think you are within your rights, can constitute sufficient evidence to convict for refusal. The samples must be obtained within a reasonable period of time after the operation of a motor vehicle or arrest. Defendants have no right to delay the administration due to the evanescent nature of alcohol intoxication.
  • Conditional refusal.
    You may think you can place conditions such as needing to use the phone or bathroom before you say yes. A DWI driver cannot attach any conditions to taking the breath test.
  • The confusion doctrine.
    While confusion is not a recognized defense to a refusal charge, there has been no firm line established by the Supreme Court which would prevent a defendant from raising the issue. A defendant who wishes to assert the “confusion doctrine” as a defense to a refusal charge will bear the burden of persuasion if he or she wishes to establish a confusion claim. A DWI defendant who cannot prove that he or she was confused by the warnings will be found to have refused to submit to a breath test.
  • Physical Incapacity.
    A DWI defendant can argue at court that he was physically incapable of giving a breath test. This type of strategy can work if the DWI driver has breathing problems such as asthma, or if they were shaken up by an accident. An injury to the DWI driver’s mouth, face, chest, or lungs that would reasonably prevent the driver from providing a breath sample would excuse a refusal.

4. Police must have reasonable grounds to request a chemical breath test.

A police officer can’t just pull over a vehicle and request a driver take a breath test. The vehicle must be stopped for committing some type of motor vehicle violation that would satisfy the probable cause standard. Random stops of vehicles in most municipal courts do not satisfy the probable cause standard.

5. A chemical breath test must be administered in accordance with the law.

The police have to read DMV Standard Statement 36 to the DWI driver. If they don’t, this could be a great loophole for a DWI driver in an “open minded” court.

There are a few defenses to breath test refusal. They include confusion about your legal obligation to submit a breath sample (not confusion from intoxication), and a physical inability to give sufficient breath samples due to certain medical conditions, such as trauma, emphysema, or asthma.

Refusing to provide samples of your breath holds the following penalties:

  •  First offense
    1. 7 month loss of license;
    2. $250 up to $500 fines;
    3. $1,000 yearly surcharge for three years;
    4. 2 days in the Intoxicated Drivers Resource Center.
  • Second Offense
    1. 2 years loss of license;
    2. $250 up to $500 fines;
    3. $1,000 yearly surcharge for three days;
    4. 2 days in the Intoxicated Drivers Resource Center.
  • Third offense
    1. 10 year loss of license;
    2. $250 up to $500 fine;
    3. $1,000 yearly surcharge for three years;
    4. 2 days in the Intoxicated Drivers Resource Center.

As mentioned before, these penalties are in addition to and consecutive to any penalties imposed for the underlying drunk driving offense. You will also be required to pay $100.00 to a drunk driver fund and $100.00 to an Alcohol Education and Rehabilitation Fund. Moreover, a driver is also subject to the requirements set by the Intoxicated Driving Program/Intoxicated Drivers Resource Center.

Prior convictions for refusing to take a breath test will no longer be counted against motorists when they are sentenced for driving while intoxicated. It was a unanimous ruling by the New Jersey State Supreme Court. The Court found that under state law, convictions for refusing a breath test and DWI convictions are not interchangeable, and can’t be combined when determining if a motorist is a repeat offender; however, the penalty for both offenses steepens as the number of prior convictions rises.

When facing the possibility of loss of license and other charges and fines related to Refusal to Take a Breath Test, NJSA 39:4-50.4a, it is in your best interest to have a lawyer that knows the laws surrounding DWI and refusal cases. The Law Offices of James A. Abate, LLC have handled many successful cases, and we can help you navigate through the seemingly endless questions you may have as your court date approaches.

The Law Offices of James A. Abate LLC
