June 15, 2020
Many residents of New Jersey have been pulled over for a suspected DWI at least once in their life. However, our instinctive reactions to such situations are seldom right. Once a police officer stops you for suspected drunk driving, how you behave is critical. You may even need a New Jersey DWI legal team to come to your rescue before things get even worse.
More importantly, what should you do if you are given the option as to whether or not to take a sobriety test? Of course, if you haven’t been drinking, you are more likely to consent to the test and prove your innocence. But if you’ve had a few drinks, you may worry that agreeing to these tests could get you into trouble.
The first thing to note is that there’s no straightforward answer as to whether to consent or refuse a sobriety test. Besides, it largely depends on the type of test the officer is requesting.
When stopped for suspected drunk driving, the officer will first observe you for any signs that you might be intoxicated. If they are suspicious of your behavior, they will ask you to perform Field Sobriety Tests (FSTs).
FSTs are standard activities police use as intoxication indicators. The three commonly used FSTs include the one-leg stand, horizontal gaze, and walk and turn. You do not have to submit to these FSTs, and you cannot be ticketed. However, your refusal could be used against you in court during your DUI/DWI case.
An officer can ask you for more tests if you complete or refuse the FSTs. You can be asked to take chemical tests, including the breath test (breathalyzer), urine, and blood test.
All over the U.S., driving is a privilege and not a right. This merit allows New Jersey to set up preconditions that you must agree to before allowing you to enjoy this privilege. One of the conditions you agree to when issued with your New Jersey driver’s license is giving your implied consent to DUI breath testing when a police officer suspects you are intoxicated.
At this point, you still have a right to refuse the test, but we don’t encourage you to do that because there are consequences. The state might be unable to prove your DUI convincingly, but you may end up with huge penalties because of your refusal.
When an officer wishes to administer a breathalyzer test, Miranda rights don’t apply. This is because you have no right to have a New Jersey DWI defense attorney present during a breathalyzer test. This is a frequent point of confusion that drivers in New Jersey face.
Before New Jersey police officers administer a breathalyzer test, they are required to inform you of the existing penalties if you refuse to submit to the test. You will then be required to give a straightforward response to the officer.
Due to the perceived legal consequence of a DUI charge, many drunken drivers will try to conduct themselves in a manner that the law establishes to be a refusal. Refusal to submit to a breathalyzer test can include:
You don’t have the right to remain silent in such a situation. Silence constitutes refusal.
You cannot attach a condition to the officer’s request. Conditions such as wanting to use a phone cannot be allowed.
If you give short samples, they are not counted as samples at all. Remember, police officers have been dealing with such behaviors for a long time, and they can easily say this behavior is evidence to your refusal.
A DUI driver has to take the test within a reasonable period.
You can give a minimum of two samples of your breath. Two samples are needed to guarantee accuracy. Failure to do this constitutes a refusal.
Refusal to take a breath test can harm your defense and make it easier for the state to revoke your driver’s license. In fact, it is easier to prove refusal than it is to prove a DUI charge. The main reason for this is because the state only has to prove that an officer had probable cause to believe you were drunk driving which justified the decision to ask for a breathalyzer test.
The presumptive level for drunk driving is .08%. Even if you are driving while intoxicated, there’s a possibility your sample readings would be below this threshold. Better still, there is a possibility for the breathalyzer to not work.
In a scenario where you are a first time offender for DUI, and your sample readings are .09%, your penalty would be a three-month license suspension. But if you refuse to take the breath test, the suspension could be 7 to 12 months!
There are limited defenses for a breath test refusal. One defense is the physical inability to provide samples due to a medical condition such as asthma.
These are the penalties if you refuse to take the initial breath test:
These penalties are in conjunction with any New Jersey DWI penalties you may get from a conviction.
Although you can refuse a sobriety test in New Jersey, it is a risky choice as a judge might consider it to be negative inference and use it against you. If you are charged for refusing a sobriety test in New Jersey, the consequences for such a charge are too great to handle yourself.
It would be in your best interest to have a DWI lawyer who understands the laws surrounding DUI/DWI and refusal cases. The New Jersey DUI lawyer at The Hernandez Law Firm, P.C. has repeatedly demonstrated an ability to handle the most complex DWI cases.
As a New Jersey instructor in DUI Detection and Standardized Field Sobriety Testing, with a certificate in Forensic Sobriety Assessment (FSA), attorney Steven W. Hernandez will help you in your defense. Get started today by calling (732) 286-2700 for a no-obligation case evaluation.
(732) 582-5076
