NEW JERSEY DWI – REFUSING A CHEMICAL TEST
I’ve written previous articles on driving while intoxicated in New Jersey and driving while under the influence in Pennsylvania. Its 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 never 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 exert any 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 no 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.
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 case law 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 that blood tests and breath tests are different in that, a blood test is a more severe intrusion on a person’s liberties.
First Time DWI in New Jersey
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 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. See 39:4-50
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).
For more information on drunk driving in New Jersey contact our law firm.
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