Refusal to Submit to a Breath Test 39:4-50.2 and 39:4-50.4
As an attorney who is experienced in representing those charged with driving while intoxicated (DWI), one of the most common questions we are asked is what the are consequences for refusing to submit to a breath test, and what should someone do if they are requested to submit to a breath test after being arrested for DWI.
NJSA 39:4-50.2 (also called the Implied Consent statute) requires all motorists who are placed under arrest for suspicion of DWI to submit a sample of their breath for testing. Notably, the statute does not require you to give a blood or urine sample.
The statute reads as follows:
2. (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).
It specifically prohibits the police from using physical force to obtain the sample.
In order for a person to be convicted under this statute, the judge must find by a preponderance of the evidence that:
- The arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana;
- That the person was placed under arrest, if appropriate;
- That the person refused to submit to the test upon request of the officer.
The penalties for Refusing to give such a breath sample are found in 39:4-50.4. A First Offense is an interlock device, a Second Offense is a one to two year license suspension followed by an interlock device, and a Third Offense is an eight (8) year license suspension followed by an interlock. The Statute reads as follows:
(1) if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
(2) if the refusal was in connection with a second offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);
(3) if the refusal was in connection with a third or subsequent offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.). A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L. 1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
39:4-50.17 sets the length of the Interlock for a First Offense to be between nine (9) and fifteen (15) months, the same as for a DWI with a .15% of higher BAC, but without a mandatory license revocation. For a Second Offense or Third Offense, the Interlock must be installed for between 2 and 4 years after serving the period of the license suspension.
The suspension for a First Offense Refusal may run either consecutive to or concurrent to a suspension for a DWI from the same arrest at the discretion of the Court. For a Second or Subsequent conviction for Refusal, the license suspension must run consecutive to a DWI suspension.
If you are asked to take a BAC test and refuse, you have a limited number of defenses with which to use. It may be that the officer who pulled you over didn’t have probable cause to do so or lacked probable cause to place you under arrest. Field sobriety tests and personal observation can often times be inaccurate and subjective, and, as your attorney, we will challenge the arrest on such grounds where appropriate. The Officer may have failed to read the standard statement mandated by the New Jersey Attorney General properly to you. This statement (click here to read statement) must be read to you exactly as written. It is also referred to as the Division of Motor Vehicles Standard Statement n regards to an operator of a motor vehicle (N.J.S.A. 39:4-50.2(e).
Please keep in mind that even though refusing will make it more difficult for the Prosecutor to convict you on the DWI charge, refusing to submit to the Breath Test will result in a separate charge of refusal with the penalties described above. Should you be convicted of both charges, you may face both penalties. For information on whether it is ever in your best interest to refuse to take a breath test, please see our DWI Frequently Asked Questions.
Please be aware that the above is only an overview. Each case is unique and different, with it’s own set of circumstances and series of events and requires individualized legal advice. If you need our help or would like additional information on Refusal to submit to a breath test, please don’t hesitate to contact us at 732-741-4448. We would be happy to set up a consultation with you, free of charge, to go over your particular case and to see where we may be of legal assistance. Please remember that you have no legal right to consult with an attorney after being placed under arrest to help you decide whether to take a breath test. If you insist on doing so, you can be convicted under the Refusal Statute.