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Do I have the right to refuse to take the breathalyzer test in a New Jersey DUI/DWI?

No! Absolutely not! The law is quite clear in New Jersey that there is no Fourth Amendment right against search and seizure, Fifth Amendment right against self incrimination, or Sixth Amendment right to counsel prior to taking the breath test.

If the police can demonstrate probable cause to arrest you for drunk driving, you have to take the test. The only exception is if you are arrested from drunk driving on private property.

You Are Better Off Complying!

In fact, if you are arrested for DUI / DWI, you are better off giving the breath samples! This is because the two main reasons for not refusing to take the test are:

  1. the penalties for refusal are the same as for a DUI (and they can still charge you with DUI as well!); and
  2. there may be defenses to the drunk driving charge itself if you give the breath sample and are charged that would be moot if you are charged with a refusal.

Therefore, you are not beating the system and avoiding the consequences of a DUI by refusing.  You are just making it easier for the state to take your driver's license.

So What Do I Do?

If you have been charged with drunk driving in southern New Jersey, please feel free to call me at 856-432-4113 or contact me through this site to schedule a free consultation in my Woodbury office.

If you are looking for more information on New Jersey's drunk driving law, then download my free book, How Much Trouble Am I In? A Guide to New Jersey Drunk Driving Law.

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