Refusing the Breathalyzer: How to Screw Up Your DUI / DWI Defense

The worst thing you can do if you are arrested for drunk driving is to refuse to take the breathalyzer. You do not have the right to refuse to take the test, and the penalties for refusal and DUI are the same. Thus all you are doing is making it easier for the state to take your driver's license.

This is because in order to prove a refusal case, all the state has to do is prove that the police had probable cause to believe you were driving drunk, thus justifying your arrest and a directive to give a breath sample, and you refused to do so after a standardized statement is read to you. In order to prove a DUI/DWI case, on the other hand, the state must prove beyond a reasonable doubt that you were operating a motor vehicle within the limits of the municipality where you were charged, and at the time you were impaired by alcohol.

How It Screws Up Your Defense

In point of fact, refusing the breathalyzer screws up your defense to a DWI. Here are some examples of why:

• What if the state can't prove conclusively that you were driving? There have been cases where the defendant could have been acquitted on that basis, but due to his refusal to give breath samples, ended up with the fines and license suspension anyway!

• What if you gave the breath samples and the breathalyzer reading was below .08%, the presumptive level for drunk driving? With a refusal, you would never know.
• What if you agree to give breath samples, but the police can't get the machine to work properly? Or the readings are too far apart to be "within tolerance" and thus not admissible as evidence against you?
• What if you suffered from COPD or some other lung condition that would prevent you from giving a sufficient breath sample for the machine? You did not refuse, but the police could not get a reading to use against you.
• What if this would be your first offense and if you had given the breath samples, the reading would have been .094%? In that instance, the license suspension would be three months. If you refuse, you would be sentenced to a suspension of 7 to 12 months!

The Breathalyzer Isn't The Only Proof You're Drunk

Even without a breathalyzer reading, if the state can prove you were driving, the results of your field sobriety test (heel-to-toe walk, nose touch, one leg stand) may be enough to convince a judge that you were drunk. For this reason, problems with the breathalyzer or the breath sample might not be enough to save you. However, if the sobriety test outcome was iffy, you would have the basis to argue a deal with the prosecutor.

If you have been charged with refusal and drunk driving in New Jersey and are looking for more information, please feel free to contact my office for a free consultation.

Need more information about NJ traffic court?  Get the answers by downloading my free book, A Guide to Driving Legally in New Jersey and Surviving Traffic Court If You Don't.  It will give you the answers you need all in one place.  Then call my office at 888-857-8418 or  contact me through this site for an appointment for a free consultation to discuss your case.