There are few things in life quite as scary as being pulled over on the road by a police officer and hearing these five words:
“Have you been drinking tonight?”
The next step is usually a roadside field sobriety test. If you “fail,” then you’re likely to be taken into custody and driven back to the local police station for a breath test.
A common question: can you refuse to take the breath test?
The literal answer is “yes” (the police will not hold you down and force the equipment into your mouth!) but you should be aware that refusing to submit can result in being charged under New Jersey’s Refusal statute.
A little background is necessary. A driver’s “license” is exactly that – something our government issues subject to certain conditions. In other words, it isn’t a “right” that is irrevocable; the government can take it away from you for not holding up your end of the bargain.
Under New Jersey state law, every driver issued a New Jersey driver’s license gives their “implied consent” to driving-related chemical tests including those involving the taking of blood, urine, or breath samples (a.k.a. the breathalyzer test). You’ve essentially agreed, as a licensed New Jersey motorist, to submit to such tests in order to exercise the “privilege” (again, not a “right”) of driving in New Jersey.
As a result, if you refuse to submit to a breathalyzer test, you will be charged for refusing to do so. This is in addition to whatever else you’re being charged with. Remember: you can be charged and convicted for DUI without evidence from a breath test. And a “refusal” can take different forms. Obviously you could explicitly say “no.” However, any ambiguous or conditional responses can also be considered refusals. Silence is also regularly considered to mean “no.”
N.J.S.A. § 39:4-50.4 sets forth the extensive legal consequences for saying “no” which can be as severe as what you might receive from the Court for the actual DUI offense. You can review the Mandatory fines, penalties, and surcharges at the New Jersey’s Motor Vehicle Commission (MVC) website.
Even though a driver’s license is a privilege, keep in mind that you still have rights before and after your DUI arrest. The state must have probable case not only for the motor vehicle stop but also to request that you submit to the breath test. If the state fails to met its burden of probable cause for the motor vehicle stop and the probable cause to request the test then the Refusal charge must be dismissed.
Unfortunately, “Miranda rights” do not apply to breathalyzer testing in New Jersey, meaning you do not have the right to have an attorney present with you during the test. However, New Jersey police officers must advise you of the penalties associated with refusing a breathalyzer test before its administration, including but not limited to the fact that your refusal to submit and provide breath samples of will result in the issuance of a separate court summons.
If you or someone you know is facing DUI /DWI charges and/or breathalyzer refusal charges in municipal court, it is important to appreciate the seriousness of the potential legal consequences. These include large fines, license suspension and imprisonment.
It’s also important to know that, even if penalties increase (legislation is currently pending in the New Jersey Legislature to do just that), there are still defenses capable of defeating the state’s case. A skilled DWI lawyer who is current on the law, with a solid knowledge of the facts, and the help of experts, can assert the right defense, challenge the state’s evidence and put you in the best position possible to win your DUI case.
The defenses to the state’s evidence vary and can be complex. Do not delay; time is of the essence. Contact the municipal court defense lawyers at DeMichele & DeMichele online today for a confidential consultation. You can also reach us by telephone at (856) 546-1350.