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New Jersey Breath Test Refusal

Under New Jersey’s implied consent law, you agreed to submit to the taking of breath in order to exercise the privilege to drive in the Garden State when you were issued a New Jersey drivers license. If you are arrested for a DWI, the officer may request a breath test (this is the breath test at the machine at the police station NOT the handheld device used at roadside) to determine if your BAC is above the legal limit.

The penalties for refusing to take the breath test begin with a suspension of your license for a minimum of seven months for a first offense and a fine from $300+. Additionally, if you were driving within 1,000 feet of a school, then the penalties for breath test refusal are doubled.

What is a Refusal?

A “refusal” can take different forms, such as:

  • An explicit “no”
  • Silence
  • Lack of cooperation—not breathing into the machine with full effort

You do not have the right to have an attorney present with you during the test. Miranda rights do not apply to breathalyzer testing in New Jersey.

Refusal as Evidence

It is erroneous to think that by refusing a breath test you will avoid DWI charges just because there is no record of your BAC. In fact, the prosecution can argue that you refused the test because you knew that you were intoxicated above the legal limit. In other words, you CAN be convicted for DWI without evidence from a breathalyzer test.

While the penalties in a refusal case are enhanced and defending these cases is more complicated, refusals can be beaten. The State must prove that probable cause existed to arrest, that you were asked to provide a breath sample, that you refused to provide a sample, and that you were advised of penalties for refusing.

In a case like this, it is in your best interest to consult an attorney who is experienced in defending refusals immediately.