Posted on Feb 02, 2010

Under New Jersey law, if a police officer has probable cause to believe that you were operating a motor vehicle while under the influence of drugs or alcohol, he has the right to arrest you and require you to submit two breath samples to an Alcotest breathalyzer machine to determine your blood alcohol content.   You must do this.  You have no fifth amendment right to refuse nor a 6th amendment right to have an attorney present.

Should you persist in refusing to do so, you can be charged with a separate offense of Refusal, in addition to drunk driving (DWI).  Both charges carry the same penalties in terms of fines and license suspension.  Basically, there is no upside to refusal, as the penalties are the same. But with a recent court ruling, the consequences became even more serious.

Refusals Now Up the Ante

On January 7, 2010, New Jersey's Appellate Division reversed a long-standing precedent, ruling that a prior conviction for refusal will now count as a prior DWI conviction for purposes of sentence enhancement.  Under New Jersey law, a second offense carries a two (2) year license suspension, while a third offense carries a ten (10) year suspension and mandatory jail time.

This ruling becomes important in cases where, because of a lack of evidence as to impairment, the DWI is dismissed, but the refusal still stands.  I had this happen to a client a few months ago, where the field sobriety test was not enough to prove impairment, but was enough to show probable cause to arrest and obtain a breath sample.  The DWI was dismissed, but he plead to the refusal.

There is another impact to the ruling as well.  Under New Jersey law, if there is more than a ten (10) year period between a first and a second offense DWI, the second is treated like a first for sentencing purposes.  In the case before the Court, the defendant had a 1979 DWI conviction and a 2006 Refusal Conviction. The defendant argued that she should be considered a first offender since the only prior DWI case was more than 10-years old and the refusal does not enhance the DWI sentence. The Appellate Division ruled that she should be treated as a third offender as the refusal conviction must now be regarded as a DWI conviction for sentencing purposes.

What Should You Do?

Ouch!  All of this simply reinforces what I tell my clients: blow into the tube and take your chances.  Maybe your reading will be too low (below .08), the machine won't be working properly that day, or the police may not follow proper procedures or be properly trained.  In other words, if you comply, you have possible defenses and a fighting chance; if you refuse, you are dead in the water, absent an issue of probable cause to arrest.

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. 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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Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.

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