Category: Atlantic County

When a driver is stopped by the police for a suspected DWI, the police may want the driver to submit to a breathalyzer test. While this is a routine part of most DWI cases, you do not always have to submit to testing. Depending on when the authorities wish to administer a breath test, you might be able to lawfully refuse. If you refuse mandatory breath testing, you might face additional consequences.

Generally, if the police want you to blow into a presumptive breath test (PBT) device before you are arrested, you may refuse. After you are arrested, refusal of chemical testing is not an option, at least not without consequences. Refusing to submit to mandatory chemical testing after an arrest results in an automatic license revocation, fines, and other penalties, even if the DWI charges are ultimately dropped or dismissed.

Call our NJ DUI and DWI defense lawyers at the Lombardo Law Group at (609) 418-4537 to get a free review of your case.

Are You Allowed to Refuse a Breathalyzer in NJ?

If you or someone you know has ever been pulled over by the police for a DWI, you probably know about breathalyzers and breath testing. After being arrested, breath testing is required by law, and refusing to submit to testing might lead to trouble. However, if the police ask you to take a presumptive breath test (PBT) before arrest, you can refuse with no legal penalties. If you are ever pulled over, it is imperative to know the difference. Even if you refuse testing, there might be ways to avoid the additional penalties. If you refused testing but were not informed of the consequences, we can fight the penalties for refusal. If you were physically forced to comply, our DUI and DWI defense lawyer might be able to have evidence of your BAC excluded.

Presumptive Breath Test

The police cannot arrest someone for a DWI based on something like a hunch or gut feeling. They need probable cause that includes articulable evidence supporting the belief that the driver was under the influence. In some cases, the police might attempt to gather probable cause by asking drivers to submit to a breathalyzer. When this happens on the road, the police typically use a presumptive breath test (PBT). At this point, you may refuse without legal consequences.

Not only can you refuse to submit to a PBT, but even if you do, it is not usually admissible as evidence in court. PBTs are more susceptible to mistakes and do not always produce reliable results. Police can use the results of a PBT to build probable cause to arrest you, but not as evidence to convict you.

Mandatory Chemical Testing

Chemical testing, including breath testing, becomes mandatory after a suspect is arrested. If you have been arrested for a DWI, you are legally required to submit to chemical testing, including a breath test. If you refuse, you might face additional charges and penalties under N.J.S.A. § 39:4-50.4a.

According to the implied consent law under N.J.S.A. § 39:4-50.2(a), testing may be mandatory because all drivers have impliedly provided consent to testing by virtue of having a license and operating a vehicle on public roads. Remember, this kind of chemical breath testing – which is different from a PBT – is only mandatory after arrest. If you have not been placed under arrest, you may refuse pre-arrest testing.

Even though testing is mandatory, you are still physically able to refuse. The police are not permitted to use force to make people comply with testing requirements. If the police forced you to submit to testing, our legal team may help you file a motion with the court to exclude your blood alcohol concentration from the case because it was measured in violation of your rights. However, refusal comes with legal consequences either way.

Consequences of Refusing a Breathalyzer in NJ

Charges for refusing to submit to testing may apply even if the DWI is dropped, dismissed, or thrown out. Under the law, a driver who refuses to submit to mandatory testing may have their license revoked. How long you lose your license depends on your circumstances. If this is the first time this has ever happened to you, your license may be revoked until you install an ignition interlock device in your car. If this is a second offense, you may lose your license for at least 1 year but no more than 2 years after you install an ignition interlock device. For a third or subsequent offense, you may lose your license for 8 years. On top of it all, the court may require you to attend alcohol education programs through the Intoxicated Driver Resource Center (IDRC). Completion of required programs is necessary if you ever want your license back.

Can I Be Found Guilty of a DWI if I Refuse a Breathalyzer in NJ?

Some people refuse to submit to a breath test even if it is mandatory because they do not want the authorities to have more evidence to use against them. While this sometimes works for certain drivers, you should not rely on it as a foolproof plan. In fact, the penalties for refusal may still be applied even if the DWI charges do not stick.

In many cases, the police have other evidence they can use to prove the DWI charges. For example, if the police notice a driver slurring their speech and an intense smell of alcohol, they may testify about this information in court. The police might also have dashcam footage of the driver stumbling during field sobriety tests or showing other signs of intoxication. While a blood alcohol concentration measurement can be powerful evidence, the authorities do not always need it.

Speak to Our NJ DUI and DWI Defense Lawyers About Your Case

If you were recently asked to take a breath test, call our NJ DUI and DWI defense lawyers at the Lombardo Law Group at (609) 418-4537 to get a free review of your case.

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