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Can You Refuse a Breathalyzer Test in New Jersey?

Can You Refuse a Breathalyzer Test in New Jersey?

If you are arrested for suspicion of driving under the influence of alcohol or drugs in New Jersey, the police officer who pulled you over will read you a standard statement for motor vehicle operators

This standard statement says, in layman’s terms, that you are required by state law to provide a breath sample upon request when a police officer believes you are driving under the influence.

Immediately after the police officer reads that statement to you, they will request your answer. That doesn’t give you a lot of time to think, and many people want to know whether they have the right to refuse. The answer to that question is quite tricky. You do — and you don’t. Here is what you should know if you are facing that decision.

Implied Consent

According to the New Jersey implied consent statute, you are required to provide unconditional assent immediately after being advised of the statute and your options. Driving on state roads is a privilege, and if you want to maintain that privilege, one of your responsibilities is to submit to all breathalyzer tests administered by police.

If you refuse the test, you will be charged with refusal to submit to chemical breath testing. This is a traffic offense rather than a misdemeanor or felony, which means that you face different consequences than you would for a DUI.

The main differences are that you are not at risk of jail time and that the standard for finding you guilty is a preponderance of evidence, as opposed to beyond a reasonable doubt.

Making Your Decision

Because refusing a breathalyzer test is a traffic offense and not a criminal charge, you do not have the right to have a DUI defense lawyer present when making your decision. Even asking to have a lawyer present may be taken as a refusal because you are offering conditional assent.

The only meaningful right you have when making your decision is the right to understand the implied consent law. This means that the officer must explain your options in a language that you understand. 

If, for example, you barely understand English but are fluent in Japanese, you can request a Japanese explanation. The officer should be able to provide a copy of the statement in that language for you to read.

Typically, you will get two chances to make an unequivocal statement of assent. If the officer feels that you are hesitating or refusing in any way after that, they may charge you with refusal. At that point, you can insist on speaking to a lawyer.

Why You Might Assent

The best reason to assent to a breathalyzer test is because you know that you aren’t drunk. 

Imagine, for example, that a cat ran out into the road, so you swerved to avoid it. A police officer nearby did not see the cat, but they noticed you were driving erratically and pulled you over on suspicion of drinking and driving. In this situation, a clean breathalyzer test could result in you avoiding DUI charges.

Someone might also assent to the test even if they had been drinking, especially if it is their first offense. 

Refusing the test will almost assuredly lead to a driver’s license suspension. However, a lawyer might be able to negotiate for lesser charges, especially if the driver has a clean record otherwise, had relatively little to drink, and did not cause harm to anyone else on the road. An attorney has less room to negotiate when their client refuses a test.

Why You Might Refuse

Refusing means you will likely be charged with refusing to take a chemical test. However, this charge by itself won’t result in a criminal record in New Jersey. Your license will be suspended for longer than if you didn’t refuse and you will pay a mandatory fine. But that outcome may be better than being convicted of a DUI.

Avoiding a conviction isn’t a sure thing. You could be found guilty of both charges. In that situation, you would likely face more serious penalties in court because you refused to take the test. In the criminal justice system, no results are guaranteed.

Contact the Law Office of Steven Ellman Today

Were you charged with a DUI in New Jersey? Whether you refused the breathalyzer test or took it, our law firm will fight to defend your rights. Contact us today to schedule a consultation with a DUI lawyer who has decades of experience handling these types of cases.


Author: Steven Ellman

Steven is laser-focused on helping his clients resolve their legal issues promptly, receive fair compensation where applicable, and move forward with their lives. He is known for treating all his clients with the utmost respect, listening to their concerns, giving them options, and helping them make informed decisions about how to best proceed with their cases.