Refusing the breathalyzer in NJ is the worst thing you can do if you are arrested for drunk driving here. You do not have the right to refuse to take the test, and the penalties for refusal and DUI are the same (with one exception). It also eliminates certain defenses you may have used. Thus all you are doing is making it easier for the state to take your driver's license.
Refusal is Easier to Prove Than DUI
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 DUI Defense
In point of fact, refusing the breathalyzer screws up your defense to a DUI. 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 (walk and turn, 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.
Refusing Breathalyzer in NJ = You Lose!
The penalties for refusing to give a breath sample are the same (with one exception) as DUI in New Jersey. Plus, if you have a prior DUI conviction (say a first offense) but no prior refusal, you would still be sentenced as a second offense refusal! The penalties are:
- Suspension of our License
- 1st Offense: 7-12 months
- 2nd Offense: 2 years
- 3rd+ Offense: 10 years
- 1st Offense: $300-$500
- 2nd Offense: $500-$1,000
- 3rd+ Offense: $1,000
In addition to this there are other fines and penalties that can bring the total to be paid much higher! The exception is there is no jail time (which is why many people facing a second or third offense refuse the test).
And That's Just What the Judge Can Do to You!
The consequences of this charge go way beyond your sentence in court. You could:
- Lose your job
- Have your auto insurance premiums skyrocket
- Be saddled with a huge debt that cannot be discharged in bankruptcy!
Don't Try to Handle This Yourself!
There may be defenses to your case that an attorney could raise that could allow you to:
- Keep your job
- Provide for yourself and your family
- Avoid a crushing debt that you can't get rid of
What Should I Do?
Considering what you face, if you have been charged with drunk driving, you need to consult with a lawyer. If you received the ticket in southern New Jersey, want to do everything you can to avoid conviction, and are ready to act, then call me immediately 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.
If you liked this information and found it useful, then you might like or need these others: