There’s a lot of confusion around this question, and I get this question all the time. People want to know, do they have the right to speak to an attorney, or to work with an attorney in deciding whether or not they should take a breath test after they’re arrested for DWI/DUI in New Jersey? Can they call anybody? Do they get a phone or a phone book, anything like that?
Well, the answer in New Jersey is simply no. The obligation to take a chemical test is actually covered by something called the implied consent law. Just by driving a car in the state of New Jersey, you’re agreeing that if you’re ever properly arrested for DWI/DUI in New Jersey, you will submit to a chemical test of your breath. The implied consent form says you have no legal right to have an attorney, physician, or anyone else present for the purpose of taking the breath samples. It also makes clear that you have no legal right to refuse or delay giving the samples. Keep in mind that the consequences of refusing a breathalyzer test include serious penalties such as license suspension and fines.
If you or a loved one is facing charges of DWI/DUI or refusing to take a breathalyzer test, it is important to consult with an experienced New Jersey DUI attorney right away. At The Kugel Law Firm, our team of skilled New Jersey DUI lawyers may be able to help protect your rights and your freedom. Call us today at (973) 854-0098 to schedule a consultation.
Do I Have the Right to a Lawyer Before a Breathalyzer Test in New Jersey?
You do not have the right to a lawyer before taking a breathalyzer test in New Jersey. The state considers breath testing a condition of implied consent, and requesting a lawyer before compliance does not delay or exempt you from taking the test.
Implied Consent in New Jersey
New Jersey enforces laws that establish a mandatory requirement for individuals operating motor vehicles on public roads to provide their consent for chemical breath or blood tests to determine their alcohol content if they are pulled over or arrested for driving under the influence. Under the legal framework of New Jersey, drivers are considered to have given their “implied consent” to such tests.
The concept of implied consent entails that individuals who apply for a driver’s license in New Jersey are bound by the condition of providing their consent to undergo chemical tests if suspected of driving while intoxicated. Motorists who obtain a driver’s license implicitly agree to cooperate with law enforcement officers in determining their blood alcohol concentration (BAC) to promote public safety and prevent the dangers of drunk driving.
This legal provision reflects the state’s commitment to combating impaired driving and safeguarding the welfare of its residents. New Jersey establishes a robust system for deterring drunk driving incidents by making the act of driving a privilege contingent upon implied consent to alcohol testing. The presence of such laws acts as a strong deterrent, as individuals who are aware of the consequences of non-compliance are more likely to exercise responsible decision-making when it comes to consuming alcohol before getting behind the wheel.
The implementation of implied consent laws not only serves as a preventive measure but also provides law enforcement officers with a crucial tool to accurately assess the level of impairment of suspected drunk drivers. Obtaining reliable and scientific evidence of a driver’s BAC allows authorities to strengthen their case in court, promoting a fair legal process while holding individuals accountable for their actions.
Moreover, implied consent laws contribute to a comprehensive approach to road safety by complementing other initiatives, such as public awareness campaigns, stricter penalties for drunk driving offenses, and the promotion of alternative transportation options. This multifaceted strategy aims to reduce the occurrence of alcohol-related accidents, injuries, and fatalities, fostering a safer and more responsible driving culture within the state.
Is It Better to Refuse Breathalyzer in New Jersey?
Deciding whether to refuse a breathalyzer test in New Jersey is a critical choice that carries significant consequences. When you refuse to take a breathalyzer test, you automatically commit the offense known as “Refusal to Submit.” This is a separate legal violation that comes with its own set of penalties, distinct from those associated with a DWI or DUI.
It’s important to note that refusing the breathalyzer does not prevent you from being charged with a DWI/DUI. In fact, refusal can sometimes complicate your situation further. The court may interpret your refusal as an indication that you believed you were too impaired to pass the test. This presumption can make it more likely for you to be convicted of a DWI/DUI, resulting in facing penalties for both the DWI/DUI and the refusal.
However, there are scenarios where refusing a breathalyzer could potentially benefit your case, depending on the specific details and context of your situation. For example, without breathalyzer results, the prosecution may have less direct evidence of your blood alcohol content, possibly affecting the strength of a DWI/DUI charge.
It’s important to carefully consider the implications. Consulting with a New Jersey DUI attorney can help you understand the potential legal outcomes and determine the best course of action for your situation.
Consequences of Refusing Breathalyzer Tests
Implied consent in New Jersey means that if anyone is stopped because of suspicion of driving under the influence, law enforcement officers can subject them to a breathalyzer. Drivers who refuse to take a chemical or breath test can have their license suspended and they can be subject to an increase in their insurance rates.
Refusing to submit to a breath test does not mean that the driver is not going to be convicted of DUI because although the state does not have the result to show that a driver has a high BAC, prosecutors may be able to use the testimony of an officer who stopped the driver or other witnesses in the area. Eyewitnesses, for example, may be able to testify that your driving was reckless or erratic. The officer who stopped you may also testify that you showed signs of intoxication such as the strong odor of alcohol, bloodshot or glassy eyes, slurry speech, or unsteadiness.
Refusing to take a test automatically results in license suspension. This is why it is important to seek an experienced DUI defense attorney who can help you protect your freedom and your future if you’re facing DUI/DWI charges in New Jersey.
| Consequences of Refusing Breathalyzer Tests | Description |
|---|---|
| License Suspension | Refusing to take a breathalyzer test can result in the automatic suspension of your driver’s license. |
| Increased Insurance Rates | Drivers who refuse to take a chemical or breath test may experience an increase in their insurance rates. |
| Potential Conviction Without BAC Evidence | Refusing the breath test does not guarantee avoidance of a DUI conviction. Prosecutors can use other evidence, such as officer testimony or witness statements, to establish intoxication. |
Is Refusing a Breathalyzer a Criminal Offense in New Jersey?
Refusing a breathalyzer in New Jersey is not a criminal offense but a civil violation under the implied consent law. Refusal results in mandatory license suspension, fines, and installation of an ignition interlock device. Penalties increase with prior offenses, even though it does not result in a criminal record.
Legal Defenses for Refusing a Breathalyzer in New Jersey
When arrested for a DUI/DWI in New Jersey, drivers are confronted with the decision of whether to submit to a breathalyzer test. Under New Jersey’s implied consent law, drivers are deemed to have consented to such testing by virtue of driving on state roads. Refusal triggers separate penalties, including license suspension and fines, even if the driver is never convicted of DUI. However, several legal defenses may apply in challenging a refusal charge.
Failure to Follow Protocol
A refusal charge can be dismissed if the officer does not follow specific procedures. New Jersey law requires the arresting officer to read an 11-paragraph “Standard Statement” word-for-word, informing the driver of the consequences of refusing the breath test. If the officer deviates from this script by paraphrasing, skipping parts, or altering the language, it may invalidate the refusal.
Additionally, if a driver has limited English proficiency and the Standard Statement is not provided in a language the driver understands, the refusal charge may be challenged. Courts have held that drivers must be properly informed of their rights and obligations under the law. If the warning is not given appropriately, or at all, a refusal conviction cannot stand.
Honest Confusion
New Jersey courts recognize what’s known as the “confusion doctrine.” Drivers are often advised of their right to speak with an attorney, but then told they may not consult one before deciding whether to submit to a breath test. This conflicting information can cause legitimate confusion. If a driver can present credible evidence of genuine misunderstanding though this is difficult to prove, the court may dismiss the refusal charge.
Medical Inability to Provide a Sample
Some individuals may be physically unable to complete a breath test due to a legitimate medical condition. Conditions like severe asthma, chronic obstructive pulmonary disease (COPD), or recent chest trauma may prevent someone from blowing with sufficient force to register a result. In such cases, the burden is on the driver to present medical documentation to support this defense.
Lack of Probable Cause for the Stop or Arrest
Although this does not directly negate a refusal charge, it can be a crucial part of the overall defense. A refusal is only enforceable if the officer had probable cause to initiate the stop and make the arrest. If the initial stop was unlawful, for example, if the officer lacked reasonable suspicion of impairment, then any evidence gathered afterward, including the breath test refusal, may be excluded. As a result, both the DWI and refusal charges could potentially be dismissed.
Speak to an Experienced DUI/DWI Lawyer at The Kugel Law Firm
Refusing to take a breathalyzer test in New Jersey results in a separate charge from a DWI, each carrying its own penalties. If convicted of both, the consequences can be significantly more severe. For this reason, it’s important to seek guidance from an experienced DUI/DWI lawyer as soon as possible.
The Kugel Law Firm is committed to protecting our client’s rights and freedom. Attorney Rachel Kugel and our team have repeatedly demonstrated our ability to succeed in the most challenging drunk driving cases in New Jersey. Contact us today to schedule a free consultation.
from Kugel Law Firm – DWI/DUI Defense in New York & New Jersey https://thekugellawfirm.com/am-i-entitled-to-a-lawyer-before-i-decide-to-take-a-breathalyzer-test-if-i-am-arrested-for-a-dui-dwi-in-new-jersey/
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