Refusing a Breathalyzer in New Jersey

Last updated: Feb 3, 2020

Refusing a Breathalyzer in New Jersey – N.J.S.A 39:4-50.4(a)

When pulled over by police for possible drunk driving, it may be tempting to refuse the breathalyzer test (also called breath tests). The hope many drivers have is to avoid giving police evidence that could be used to convict him/her. Unfortunately, when a person does this, it means he/she has committed another violation and penalties that stand on their own.

Under N.J.S.A. 39:4-50.4(a), a driver is required to submit to an alcohol breath test when asked by police in New Jersey. Refusing a breath test will not avoid the consequences of driving drunk. Instead, it will bring on additional penalties, including a longer license suspension and more fines.

Anyone who has been charged with refusing a breathalyzer should contact an attorney right away.

What does it Mean to Refuse A Breathalyzer?

Police officers in New Jersey use a technology called Alcotest, which most people call breathalyzers. This technology can estimate the amount of alcohol in a person’s body by analyzing a person’s breath.

State law dictates that driving on NJ streets is a privilege, not a right. In exchange for being allowed to exercise that privilege, a person is expected to obey the rules of the road, including submitting to a breathalyzer when asked by police.

Refusing a breathalyzer/Alcotest comprises more than just saying, “No.” Other actions that can be considered a refusal include:

Silence. Simply not responding to the officer’s request constitutes a refusal.
Delayed or conditional refusal. A driver who attempts to delay or avoid a breath test by insisting on using the bathroom or making a phone call first can be charged with refusing.
Weak samples. Giving a short or weak sample in the hopes of getting a lower reading is a refusal in the eyes of the law.
Insufficient sample. Police are required to collect two samples to ensure accuracy. Giving only one is the same as giving none.

Penalties and Fines

In addition to the consequences of a DUI conviction, New Jersey law has separate penalties for a breathalyzer refusal. A first-time offender can face a license suspension between 7 months and 1 year—this would be concurrent with a license suspension from a DUI conviction. In addition, he/she would have to pay a fine of $200 to $500 and spend 2 days in an Intoxicated Driver Resource Center (IDRC).

A second offense increases the penalties to a 2-year license suspension, a $500 to $1,000 fine and 2 days in an IDRC. Third and subsequent offenses can result in a 10-year license suspension, $1,000 fine, and 2 days in an IDRC. Again, these penalties are in addition to any imposed by a DUI conviction.

Also keep in mind that if the driver is charged with DUI in a school zone and refuses a breathalyzer, the penalties for the refusal are doubled!

How To Beat A Refusing A Breathalyzer Charge

When a person signs for his/her driver’s license, he/she has agreed to submit to a test for drugs or alcohol if asked by police. This is called implied consent. It leaves little wiggle room to defend against refusing a breathalyzer.

There are only three valid ways to beat a breath test refusal.

Prove that the driver was unclear as to his/her rights. Police are required to read an 11-paragraph statement explaining why a driver must provide breath samples and what will happen if he/she refuses. If the officer does not read this statement (rarely happens), then the driver could be acquitted.
If the driver’s English is limited, there may be room to argue that the driver did not understand what the officer was saying. Likewise, if the driver was dazed or in shock following an auto accident, an attorney could argue that the driver was not cognizant enough to understand the officer.
Medical reasons. Drivers with serious pulmonary illnesses, including severe asthma or emphysema, could be excused from taking a breathalyzer. However, the burden is on the driver to provide proof of the medical condition. A driver could also be excused from a breath test if he/she has suffered an injury to the face, jaw, chest, or lungs as part of an accident.

No driver should ever attempt to beat a breathalyzer refusal charge on his/her own. Only an experienced attorney will know how to fight a breathalyzer test refusal, so it is critical that a person consult with one right away.

Case Law Analysis

State v. Marquez, 998 A. 2d 421

State v. Marquez, 998 A. 2d 421 establishes that police must read a suspect the breath test demand in a language the suspect understands. In September of 2007, German Marquez was stopped in his car on suspicion of driving under the influence of alcohol or drugs. He spoke no English but was read an 11-paragraph breath test demand (all in English), and then a 2-paragraph clarification (again, in English). After the defendant indicated he only spoke Spanish, he was charged with refusing to comply with a lawful demand. The defendant was convicted in municipal court, then again in the trial court, and the convictions upheld by the Appellate division. The Supreme Court reversed the conviction and vacated the defendant’s sentence for refusing to comply with a breath demand. They found that, because the demand was not read to him in a language he understood, the defendant was not “informed” of the consequences of a refusal.

State v. Monaco, 134 A. 3d 997

The defendant in State v. Monaco, 134 A. 3d 997 was involved in a single-vehicle accident and detained by the police for an impaired driving investigation. She made several unsuccessful attempts to blow into the breathalyzer machine but failed to provide an adequate breath sample. As such, she was charged with refusing to provide a breath sample. At trial and on appeal she argued, among many other things, that she had demonstrated she was physically incapable of providing a breath sample due to her pulmonary disorders. The trial court and appellate court disagreed. Further, the appellate court reaffirmed that, when a defendant argues an incapacity to complete the breath test, the burden of proof is on him/her to establish an inability to comply with the breath demand.

State v. Widmaier, 724 A.2d 241 (1999)

In State v. Widmaier, 724 A.2d 241 (1999), the state appealed the defendant’s acquittal on a charge of refusing to comply with a breathalyzer demand. While the procedural history of this case and the reasons for the decision are complicated, the court used the opportunity to comment on what sorts of behavior constitute a “refusal.” The court, citing a number of cases including State v. Berhardt, 584 A.2d 854 (discussed below), endorsed the principle that “unconditional, unequivocal assent” to the breathalyzer demand must be provided in order to avoid a conviction for refusal. They reconfirmed that no negotiation, maneuver or debate by the defendant is permitted. In this case, the defendant had been acquitted of refusal after he had twice demanded to have an attorney present during the test. The Supreme Court of New Jersey found that, in fact, the defendant “failed to consent to a breathalyzer test” and confirmed that the defendant had no right to have an attorney present during the test. However, because of the constitutional protection against double jeopardy, the Appellate Division denied the State’s appeal.

State v. Berhardt, 584 A.2d 854

The defendant in State v. Berhardt, 584 A.2d 854 refused to take a breathalyzer until he’d been given an opportunity to speak to his attorney. After 10 refusals, he was issued a summons for refusing a breathalyzer and allowed to speak to his lawyer. Five minutes after speaking to his lawyer, he asked if he could take the breathalyzer. Police refused. He was convicted in municipal court and again on his de novo appeal of refusing to provide a breath sample. He appealed, arguing that he should have been given the opportunity to “cure” his initial refusal after he received legal advice. The Supreme Court of New Jersey rejected his arguments and dismissed the appeal. As in State v. Widmaier eight years later, the court held that “unconditional, unequivocal assent” to the breathalyzer demand was required. The offense was complete as soon as the defendant failed to consent unequivocally and he could not “cure” it by later offering to take the test.

Consequences for a First Offense

When it comes to refusing a breathalyzer, New Jersey is not lenient on first-time offenders. The penalties are harsh and there is little room to negotiate the charge to a lesser offense. A person will need a strong defense attorney who can either beat the charge or argue for alternative sentencing (see below).

Consequences for Juveniles

Young drivers often make the mistake of believing they have the right to refuse a breathalyzer. Unfortunately, no one has that right. Juvenile drivers (under 18) and drivers under the age of 21 who don’t submit to a breath test can find themselves charged with both a breathalyzer refusal and DUI—even if they weren’t drinking at all.

Any parent whose child has been charged with refusing a breathalyzer or any other alcohol-related offense should contact an attorney right away. Sadly, unlike with some criminal offenses, there are no age-appropriate penalties for juveniles charged with not submitting to a breath test.

An experienced attorney will know the best tactics to employ that could beat the charge or minimize the penalties.

Alternative Sentencing

Refusing a breath test does not result in jail time, and someone who is convicted can only be required to attend 2 days in an IDRC, which is a rehabilitation center. Thus, there is little need for alternative sentencing.

The biggest challenge a driver will face is the license suspension, which can limit his/her ability to hold down a job, attend school, or care for children.

With the help of an attorney, a person may be able to convince the judge to allow for a conditional or hardship license. This would allow limited permission to drive. It is best to discuss this option with an attorney to find out if it is possible given the circumstances of one’s life and the case itself.

Expunge A Breathalyzer Refusal

In New Jersey, refusing a breath test is a traffic violation, not a criminal offense. That means a conviction will not result in a criminal record.

The conviction will appear on one’s driving record, however. NJ does not drop or conceal traffic convictions after a period of time—they are all viewable for the life of the driver. That means there is no way to expunge (clear) the conviction.

Frequently Asked Questions

Does refusing breathalyzer affect insurance?

Like any traffic conviction, refusing a breath test can impact auto insurance rates. This is true even if the driver is not convicted of drunk driving.

Can you be convicted of DUI without a breathalyzer?

A breathalyzer is only one piece of evidence an officer can use against a person to convict him/her of DUI. The smell of alcohol on a person, slurred speech, a physical field sobriety test (e.g. walking in a straight line), and other observational evidence can be used in addition to or in place of breath test results. Moreover, refusing a breathalyzer can be seen by judges as evidence of guilt in DUI cases.

Can you refuse a breathalyzer in New Jersey?

NJ’s implied consent law means anyone who has accepted a NJ driver’s license has agreed to submit to a breath or chemical test for drugs/alcohol when asked by law enforcement. Thus, a person is not legally permitted to refuse.

Should I refuse a breathalyzer if I am very drunk?

The law says a person should not refuse. In some cases, it is easier to get the breath test results thrown out than beat a refusal.

What happens to a breathalyzer refusal charge if I win the DUI case?

A breathalyzer refusal charge is separate from the DUI charge. Even if a person is acquitted of drunk driving, he/she can still be convicted of refusing the breath test.

Who Should I Contact?

If you or a loved one has been arrested for refusing a breathalyzer or for any other serious traffic offense in New Jersey, contact an attorney for help. The lawyers at Rosenblum Law are skilled defense attorneys with experience helping people in similar situations. Email Rosenblum Law or call 888-815-3694 today for a free consultation about your case.

Last updated: Feb 3, 2020

Adam H. Rosenblum

About The Author

Adam is the founding attorney and principal of Rosenblum Law. With more than two decades of legal experience in numerous areas of law practice, his primary focus is law firm management and business development.

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