New Jersey DWI (Drunk Driving) Chemical Test (Breathalyzer) Refusal – What are penalties and is there a defense?
NEW JERSEY DWI – REFUSING A CHEMICAL TEST
During the Summer months, DWI/DUI (aka drunk driving) offenses often increase dramatically. I’ve written previous blog articles and made videos on driving while intoxicated in New Jersey and driving while under the influence in Pennsylvania. It is important to understand that in both states you should never refuse a chemical test if you are stopped and arrested for suspicion of drunk driving. A refusal will NOT help your criminal case and in many cases, it will make it worse!
The law in Pennsylvania and New Jersey prohibits a person from refusing a chemical test and there is no constitutional right to refuse a blood, breathalyzer, or urine test. If you choose to refuse, the officer will not force to compel you to take the test but will simply document the fact that you refused.
What is considered a refusal in New Jersey?
In New Jersey under 39:4-50.2, when a person refuses a chemical test the police officer is required to inform the person arrested for driving while intoxicated of the consequences of the failure to submit to a breathalyzer test (Alcotest).
Those warnings include the fact that there is not legal right to refuse and in doing so will result in immediate driver’s license suspension. Further, in New Jersey, when a person refuses a chemical test, the prosecution can use evidence of the refusal to infer guilt on the part of the accused. New Jersey, like Pennsylvania, considers anything other than an unqualified, unequivocal assent to the officer’s request as a refusal. This would include an accused person simply not saying anything in response to the officer’s request to take a chemical test.
What can your criminal defense lawyer do to fight a New Jersey Breathalyzer refusal charge?
Clients often ask if there is anything we can do to help with a refusal charge in New Jersey. This is often a very misunderstood area of criminal defense. There is no Sixth Amendment or due process right to counsel for purposes of consultation prior to administration of breathalyzer test. It is correct to advise a driver that he has no right to refuse to give breath sample on grounds that he has not been afforded counsel. In other words, a driver has given implied consent to a breathalyzer but this implied consent is different from your constitutional right against self incrimination or the right to counsel. Since this is very confusing, your criminal defense lawyer can argue that this confusion amounted to a defense to a refusal. Keep in mind, however, that a Defendant has burden of persuasion in establishing that Miranda warnings and “implied consent” warnings were confusing.
How will Pennsylvania treat a New Jersey DWI refusal?
If you refuse a chemical test in New Jersey it will likely cause a driver’s license suspension in Pennsylvania as well. This means that if you commit a DWI in New Jersey but maintain a Pennsylvania drivers’ license, New Jersey and Pennsylvania will suspend your operating privileges. This is not the case for every DUI, but refusals are treated differently. While there is no case law (Birchfield) which prohibits police from taking a blood sample without a search warrant this, more than likely, will not be a defense against a driver’s license suspension for a Pennsylvania driver. New Jersey, for the most part, uses the Alcotest, which is a form of breathalyzer, and usually never takes blood to establish impairment or intoxication. Further, the United States Supreme Court case which specifically addresses drunk driving and blood test refusals does not extend to breathalyzers. The Supreme Court specifically stated in the Birchfield opinion that blood tests and breath tests are different in that, a blood test is a more severe intrusion on a person’s liberties.
DWI in New Jersey -What are the penalties for drunk driving in New Jersey and Pennsylvania?
Pennsylvania, unlike New Jersey, will not suspend a first time drunk driver for a general impairment DUI under Section 3802(a)(1)-without accident, whereas New Jersey requires a minimum 3 month license suspension for a general impairment DUI and a 7 month suspension where BAC is .10 or higher or the person is under the influence of drugs.
There is no mandatory minimum jail for first time offenders in New Jersey but a 48 hour to as much as 90 days for repeat offenders and a 180-day mandatory minimum for a 3rd offenders within 10 years (only 90 days max can be served in patient as opposed to in county jail).
Second time offenders will lose their license for a minimum of 2 years and 3rd time offenders will lose their drivers’ license for 10 years.
This is different from Pennsylvania where 2nd time offenders will lose their license for 18 months. Pennsylvania’s license suspension will never exceed 18 months even for 3rd offenses and beyond.
What are the penalties for DWI chemical testing refusal in New Jersey?
Penalties for a First Offense DWI Breathalyzer Refusal?
The first time you refuse a breathalyzer in New Jersey, you will face a fine of between $300 and $500. Your driver’s license will be suspended until you install an ignition interlock device (IID) in your vehicle for 9 to 15 months. An interlock device requires you to test the level of alcohol in your breath prior to driving. A convicted person must also spend a minimum of six hours per day for two consecutive days in an Intoxicated Driver Resource Center, and receive drunk driving education.
Penalties for a Second Offense DWI Breathalyzer Refusal
For a second breathalyzer refusal, a drunk driver faces a fine of between $500 and $1,000 and a 1 to 2 years license suspension following the interlock installation in your vehicle. The drunk driver must spend 48 hours consecutively in detainment in an Intoxicated Driver Resource Center. There is also mandatory community service and a jail term of between two and 90 days.
Penalties for a Third Offense DWI Breathalyzer Refusal
For a third or subsequent offense, a driver face a fine of $1,000 and an eight-year license suspension following the installation of the interlock in your car or vehicle. You must also attend an alcohol education program and additional alcohol counseling at the Intoxicated Driver Resource Center. You will have a mandatory county jail sentence of 180 days.
What Must the State Prove in a DWI Breathalyzer refusal?
To convict a drunk driver of refusal to take a breath test, the state must prove all elements of the crime beyond a reasonable doubt; these factors include the following:
- There was probable cause to be suspicious that you were intoxicated while driving
- You were arrested for a DUI or DWI
- A police officer requested that you submit a breath sample
- The police officer adequately explained the process and your rights
- You refused to take the breath test
Pre-Trial DWI Programs & Drunk Plea Bargaining in New Jersey
New Jersey does not have any pre-trial programs such as Accelerated Rehabilitative Disposition (ARD) and New Jersey prosecutors are not permitted to negotiate drunk driving cases. A defense lawyer can come to an agreement with a prosecutor regarding the state’s ability to establish its burden of proof (guilt beyond a reasonable doubt). An example of permissible form of negotiation is speaking to prosecutor about the evidence and convincing him/her that the State will not be able to meet its burden of proof of guilt beyond a reasonable doubt
For more information on drunk driving in New Jersey contact our law firm.
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