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Breath Test Refusal

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Breath Test Refusal Lawyer West Windsor, NJ

What Does Implied Consent Mean Under New Jersey Law?

Implied consent just means that as a condition of driving on the roads in New Jersey, whether you are licensed here or in another state, you have already consented to provide samples of your breath for testing should you be stopped and arrested for Driving While Intoxicated (DWI). Your refusal to provide samples of your breath for testing is an offense separate from DWI and can separately lead to license suspension, fines, ignition interlock devices requirements and surcharges. It is imperative that you speak with a West Windsor breath test refusal lawyer about your case.

What Is Considered to Be a Refusal by Police in a DWI Case?

In New Jersey, you can only be charged with Refusal if you refuse to give samples of your breath AFTER you’ve been arrested. Many people get confused and think that the breath sample they might be asked to give on the side of the road is “THE” breath test, but it’s not. That is a portable breath test, or PBT, and it isn’t admissible as evidence of intoxication in New Jersey. So, if you give a breath sample into a PBT on the roadside and then you are arrested and taken back to the station, you must still give samples of your breath at police headquarters. If you don’t, you will be charged with Refusal.

What Are the Consequences of a Refusal in New Jersey?

A refusal generally carries the same consequences in New Jersey as a DWI, although there are a couple of differences. On a first offense, if you are convicted of DWI without a reading, or with a reading of .08% to .099%, you would only be sentenced to a 3 month license suspension, plus the other fines and DWI penalties. But if you are found guilty of Refusal, you would be sentenced to a 7 to 12 month license suspension as well as the other fines and penalties associated with a DWI. In addition to that, you will also have to install an ignition interlock device, or IID, in your car for the period of your suspension and for an additional 6 to 12 months after your license is restored.

On a second offense Refusal, you would be sentenced to a 2 year suspension and all the other fines and penalties associated with a DWI conviction. For a third offense, you would be sentenced to all the fines and penalties associated with a DWI, including the 10 year license suspension, but you would not have to serve the 180 days in jail that you would if you were convicted of a third offense DWI.

What Are the Basic Elements of a Viable Refusal Case?

In order for a person to be convicted of Refusal, the State must prove four elements. These elements, as described by the New Jersey Supreme Court in State v. Marquez, 202 N.J. 485 (2010), are as follows: (1) the arresting officer had probable cause to believe that the defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) the defendant was arrested for driving while intoxicated; (3) the officer requested the defendant to submit to a chemical breath test and informed the defendant of the consequences of refusing to do so; and (4) the defendant thereafter refused to submit to the test.

What Are Potential Defenses in a Refusal Case in New Jersey?

Viable defenses on a Refusal case in New Jersey are few and far between. Up until 2010, it was not even a defense to a refusal if the police read you the standard statement in a language you didn’t speak or understand. Now that’s one of the few defenses to Refusal. If the police want you to take breath tests, they have to read to you a standard statement which informs you of your rights and responsibilities under the law. If they read you that statement in a language you don’t understand, you cannot be convicted of refusal.

Another defense would be if you tried to blow but were unable due to some medical condition.

Furthermore, women over the age of 60 have been shown to be unable to provide the same volume and duration of air as the general population. Therefore, if a woman over the age of 60 is not able to provide the requisite volume in her breath samples, she cannot be convicted of refusal.

Free Consultation with an Experienced Robbinsville DUI Defense Attorney

You should retain an experienced DWI defense lawyer who can evaluate whether you have a defense on your Refusal case. Contact DWI defense lawyers Aydelotte & Scardella Law LLC by calling (609) 587-1144 or by filling out this online form.

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