If you are taken into custody on suspicion of drunk driving in New Jersey, you will be asked to submit to a breath test at the police station. There can be several valid reasons why you may have trouble doing so.

Under NJ law, if you do not successfully provide two breath samples to the police, you will be charged with refusing a breath test. The charge of refusal comes with penalties similar to a DWI, and most often, you will be issued citations for both DWI and refusal if you fail to blow.

Common Reasons a Breath Test Isn't Completed

If you were involved in a car accident while suspected of DWI and suffered injuries requiring medical attention, you will be taken to the hospital rather than the police station. There, police will request a blood test to determine your blood alcohol content (BAC) level.

Another issue some drivers face is difficulty providing a large enough breath sample. You are required to provide a sample of 1.5 liters for at least 4.5 seconds for each test. If you cannot do so, whether due to lung capacity or inability to catch your breath, the officer will allow a few attempts before issuing a charge of refusal.

The test can be administered a maximum of eleven times if the sample is continually terminated due to not meeting the minimum volume requirements.

How a DWI Breath Test is Performed in NJ

If you are physically able to take the breathalyzer, the test will be conducted at the police department, and the machine will record your BAC levels. The Alcotest is the breathalyzer device used in New Jersey to measure the BAC of suspected drunk drivers.

For a breathalyzer test to give an accurate reading, it must measure the overall blood alcohol concentration in a person's system. Breath that comes from deep in the lungs will have a different alcohol level than breath that comes merely from the mouth.

The reason New Jersey requires 1.5 liters over 4.5 seconds is to ensure the machine takes a fair sample of the person's blood alcohol concentration. If the sample is not given for at least 4.5 seconds, the reading will not be accurate.

Failing to provide an accurate sample through a breathalyzer after multiple attempts can result in a charge of refusal, even if not done purposely.

Breathalyzer Exception for Women Over Sixty Years Old

New Jersey law acknowledges that women aged sixty and older can experience difficulty meeting the breath test sample requirements. As a result, a woman over sixty years old is only required to submit a sample of 1.2 liters.

Women over sixty can have physical difficulty blowing enough air to record an accurate sample using the Alcotest 7110 device. For this reason, the New Jersey Supreme Court directed that the instrument be reprogrammed to accept a smaller breath sample of 1.2 liters from women over 60.

In State v. Chun, the court ruled that if this reprogramming is not done, it would be unfair to prosecute women over the age of sixty on a refusal charge.

Call an Experienced DWI Refusal Attorney

If you have been charged with a DWI or refusal, you need an experienced New Jersey DWI defense attorney to protect your rights.

Partner Carmine R. Villani, Esq. has a wealth of experience in New Jersey drunk driving defense. He has served as both municipal prosecutor and municipal public defender in numerous municipalities across Ocean County and Monmouth County throughout his legal career.

Contact the experienced NJ DWI defense attorneys of Villani & DeLuca for a free initial consultation by calling (732) 709-7757 today.