"DUI Refusal"

Refusal to take the breathalyzer test in New Jersey will likely result in suspension of driving privileges from 7 months to 1 year for first offense because drivers have no legal right to refuse to take the breathalyzer test once they are arrested for suspicion of DWI.

Additionally, it is more difficult to beat this charge than a drunk driving charge.

What constitutes a violation?

The most obvious violation is when the driver clearly states "no."

However, an insufficient breath sample or even a short sample can result in such a charge.

Delay in the administration of the test or even a conditional refusal where the driver says "I will submit if..." will also likely result in conviction of this charge.

Even silence is considered a violation.

A driver refusing to take a breathalyzer test cannot change his or her mind later on and decide they are ready to take the test because they are already charged with the offense.

To secure a conviction for this offense the State must be able to prove that there was "reasonable suspicion" a violation was committed for purposes of effectuating a motor vehicle stop.

The State must also be able to prove that the defendant was actually operating the motor vehicle at the time of the stop on a public or quasi public roadway while under the influence of alcohol.

For example, township of Old Bridge, New Jersey police may charge a driver with refusal after a stop on public highway like route 516 or even a quasi public area such as a mall parking lot.

However, if the driver was observed on private property he may not be charged with refusal although he may still be charged with drunk driving.

Finally, police must prove that defendant was arrested for DUI based on probable cause and thereafter refused to submit to a breathalyzer test.

Defendants charged with refusal to submit to a chemical test are typically also charged with drunk driving, so essentially they face a double conviction and the courts can sentence concurrently or consecutively.

When sentenced concurrently they lose their license for 7 months and when sentenced consecutively they lose their license for 10 months assuming it is a first offense.

Hence, the consequences to this offense are essentially the same as the consequences to a DUI charge.

A possible defense to this charge is a challenge to the field sobriety test administration, which is essentially a probable cause challenge to the arrest.

Additionally, if the statement that must be read to DUI suspects prior to administering the breathalyzer test was not read, the case may get dismissed.

The two other most common defenses used for this offense are rarely if ever accepted by the court.

First, the language barrier is used when the driver does not speak English, but the courts almost never entertain such a defense.

Confusion is yet another defense often invoked in court.

After all, the defendant is first read his Miranda rights notifying him of his right to an attorney but then he is told he must submit to this test regardless whether he wants to speak to an attorney or not.

If you like to discuss a refusal charge with a NJ DWI lawyer, please do not hesitate to contact us?