Google Screened

Free Consultation

888-355-4752 888-ELLIS-LAW Se Habla Español

Can I Refuse a Breathalyzer Test in New Jersey?

Posted on: February 14, 2022

Anyone who has been pulled over by a police officer for any reason understands how nerve-wracking it can be. It can be difficult to remain calm, particularly when you are not sure if you have done anything wrong. Not knowing the right things to say or do makes it even worse. A specific situation that falls into this category is whether you can refuse to take a Breathalyzer test after being pulled over. Much depends on state laws, and if you live in New Jersey, you may face serious consequences if you say no when asked to take one. Keep in mind that a refusal also could be used against you later in court.

Will I Get Arrested for Refusing to Take a Breathalyzer Test?

When a law enforcement officer stops you and thinks that you are driving under the influence (DUI), they may ask you to complete a Breathalyzer test to determine your blood alcohol concentration (BAC). You might not be arrested at that point for not agreeing to take it, but you could be at risk for getting your license suspended, fines, and other charges. Driving is considered to be a privilege, not a right. Therefore, states are entitled to suspending and revoking licenses, levying fines, and putting motorists in jail for not submitting to BAC tests when they are suspected of driving under the influence.

What does implied consent mean? In legal terms, it means that the privilege of driving implies that drivers indirectly agree to taking BAC tests. In other words, refusing to take a Breathalyzer test means that you may have to surrender your driving privileges. This seems like somewhat of a gray area and can be confusing for drivers. Generally, states can penalize drivers who refuse to take BAC tests by suspending their licenses for up to 12 months. If the individual has any past DUI convictions, they might face even longer suspension or possible jail time.

In some states, the laws differentiate between refusing a mobile Breathalyzer and refusing a post-arrest breath test, blood, or urine test at a hospital or police station.  Certain states also have a no-refusal DUI enforcement initiative. With this, suspects can be forced to submit to BAC testing if there is a warrant. In some areas, law enforcement officers are now able to obtain electronic warrants on their mobile devices from judges in certain cases. This targets the issues of suspects having time to sober up before paper warrants can be procured.

What Are the New Jersey Breathalyzer Laws?

If you are pulled over in New Jersey and the officer wants you to take a Breathalyzer or a field sobriety test, they must explain your rights to you before beginning, and your rights if you refuse. In New Jersey, the consequences for refusing to take these tests can be severe. New Jersey follows the implied consent laws. Driving is a privilege, not a right, and drivers are expected to follow the rules of the road, and that includes submitting to Breathalyzer tests when asked to do so by law enforcement officers. There is more than one way to refuse a Breathalyzer test as well. You can say no or remain silent; the second choice is also seen as a refusal. If you try to avoid or delay your BAC test by claiming to need to use a bathroom or wanted to make a phone call first, these are also seen as refusals. These tests require two full samples, so if you only give one or provide weak or short samples, these are also refusals in the eye of the law.

A first offense refusal may incur:

  • A $300 to $500 fine
  • Driving privilege suspension for seven to 12 months
  • A minimum of 12 hours of time at the Intoxicated Driver Resource Center.

Second offenders may face:

  • A $500 to $1,000 fine
  • Driving privilege suspension for two years
  • A minimum of 12 hours of time at the Intoxicated Driver Resource Center.

More Details on New Jersey Breathalyzer Laws

Subsequent refusal to take BAC tests can result in much higher fines and penalties, and they can also be doubled if you were caught in a school zone. Keep in mind that you may also have to face court costs, higher insurance premiums, and an ignition interlock device on your vehicle that prevents it from being driven by anyone.

Younger drivers should also be aware of the severe fines and penalties that can be incurred when refusing to take BAC tests. The laws all apply to them as well, and as with other drivers refusing to submit to the test, this can lead to two charges: Breathalyzer refusal and DUI. In many cases, drivers who are charged with DUIs were not even drinking in the first place. If your child was charged with either or both offenses, you will want to contact a lawyer experienced in criminal defense. No matter how young the alleged offender is, there are no age-applicable penalties for these charges.

It is also important to know that initially refusing and then agreeing to take a Breathalyzer can also get you into trouble. In State v. Bernhardt, the defendant had refused to take a Breathalyzer until he was able to talk with his lawyer. He had refused the test 10 times, was issued a summons, and then spoke to the lawyer. After several minutes, he asked if the officers would let him take the Breathalyzer and they refused. Later, he was convicted for refusing to take the tests. He appealed to The Supreme Court of New Jersey, but they rejected the arguments and dismissed his appeal.

Is It Possible to Beat a Breathalyzer Refusal Charge?

This is no easy task, but an experienced criminal defense lawyer may be able to help you challenge the charges. One way to do this is to claim that you refused the Breathalyzer test owing to medical reasons. People with pulmonary illnesses such as emphysema and severe asthma are sometimes excused from having to take the tests. Another medical reason could be if a driver had previously suffered an injury to their lungs, chest, face, or jaw in an accident. If you want to try this defense, the burden will be on you to show proof of your medical condition.

A second defense could focus on not being able to understand what the officer was saying. This could be used if the driver’s English is limited;  a lawyer might be able to argue that the driver did not comprehend what the police officer was saying. Or the driver could have been in shock after a car accident and was not fully aware of what was going on when the officer asked for the BAC test.

As mentioned earlier, police officers are required to explain the driver’s rights to them, and this consists of a statement that is 11 paragraphs long. It explains exactly why drivers must provide the samples, and what will happen if they refuse. When officers do not read this statement, drivers can be sometimes be acquitted. However, police officers rarely neglect to read drivers their rights in these situations.

Freehold Criminal Defense Lawyers at Ellis Law Represent Drivers Who Have Refused to Take Breathalyzer Tests

Knowing the right thing to do when asked to take a Breathalyzer test is daunting, and making the wrong decision can come back to haunt you later. If you are in this situation and are seeking trusted legal advice, reach out to the Freehold criminal defense lawyers at Ellis Law. Our experienced legal team knows how these confusing laws work, will explain your options, and will fight to protect your rights. For a free, confidential consultation, call us at 732-308-0200 or complete our online form. We are located in Freehold, New Jersey, and help clients throughout East Brunswick, Toms River, Middletown, Jersey City, Neptune, Hudson County, Union County, Essex County, Monmouth County, Marlboro, and Ocean County, as well as Brooklyn, New York, and New York City.

Contact Us

  • This field is for validation purposes and should be left unchanged.
contact ellis law