No, you do not. There is no 6th Amendment right to counsel prior to giving two breath samples to an Alcotest breathalyzer in a New Jersey drunk driving case. In fact, courts have held that the holding of a driver's license constitutes advanced consent to giving breath samples if you are ever arrested for DUI.
You Must Refuse the Breathalyzer Twice
You Get a Warning First. The police must do more than ask for the breath samples, however. They are required to read from a standardized statement advising you of your rights (or more accurately, the lack thereof) before asking for the samples.
If you refuse to give a sample after that, then you will be charged with refusal, which carries the same penalties as a DUI. If they fail to read this statement, and you refuse, then you cannot be convicted of a refusal.
I have often stated that refusing to take the breathalyzer is one of the worst things you can do, and the best way to screw up your defense of the drunk driving charge. This is because you might have grounds to beat the charge, and may even succeed at trial. However, you still face the same penalties for the refusal, so you are no better off.
So What Should I Do?
Refusal of the breathalyzer complicates your case. You need an experienced DUI lawyer to navigate it and minimize the consequences. If you have been charged with drunk driving in Burlington, Camden, Gloucester, Salem or Cumberland County, please feel free to call me at 856-432-4113 or contact me through this site to schedule a free consultation.
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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