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What is Considered DWI Refusal in New Jersey?

Criminal Defense Lawyer
According to New Jersey law, it is required that a driver submit to a breath test upon being pulled over for driving while intoxicated (DWI) when a law officer requests it. If a person is stopped on suspicion of DWI and refuses to submit to a breathalyzer, it is a traffic violation punishable by loss of license, fines and the order to attend alcohol classes.
Depending on whether it was a first, second or third offense, the driver might lose his or her license from anywhere between seven months and ten years. The fines and fees required can add up to a significant amount of money. If the refusal occurs in an area deemed to be a school zone, the penalties are even more substantial.
It is important to know what constitutes a DWI refusal in New Jersey. There are numerous actions a driver may take that could be construed as refusing to submit to a DWI breath test. Some are obvious, but some aren't. They are explained below.


Silence is a tactic that is used by people who believe that the Miranda rights give them reason not to speak when the officer requests that they submit to a breathalyzer. In reality, silence is not a valid way to avoid providing a breath sample. If the driver doesn't reply to the officer's request to take the test, this is viewed as a refusal even if that was not the intention.

Failure to Provide Sufficient Breath Samples

There must be a sufficient number of times that the defendant was tested via breathalyzer. There is a requirement that the officer take two valid samples at the time of the arrest. This is meant to guarantee a consistent and accurate reading of the blood-alcohol levels. If the driver does not provide two sufficient samples, it is deemed to be a refusal even if he or she gave one and agreed to do so.

Short Samples

If a defendant gives what is known as a short sample when taking the breathalyzer test, it can be viewed as a refusal. A short sample means that the driver did not provide enough air into the machine when breathing out. Without a long enough sample, the breathalyzer cannot provide an accurate reading of the alcohol in the blood.

Delaying Taking the Breath Test

A defendant might try to delay taking the breath test in the hope that a few extra minutes might reduce the amount of alcohol in the blood. They might want to speak to their lawyer or delay for some other reason. This is not a valid excuse because there is no right to refuse a DWI breath test. In order to get an accurate gauge of the amount of alcohol in a defendant's blood, the test must be taken at the time of arrest.

Providing a Conditional Refusal

The driver must submit to the DWI test when asked to do so. Sometimes he or she will ask to make a call or use another reason to delay the test. This behavior also warrants a charge for breath test refusal in New Jersey.

Being Physically Incapable

A person stopped on suspicion of DWI and instructed to provide a breath sample might have a legitimate reason not to take the test due to an illness or condition. For example, if the individual is suffering from asthma and cannot formulate the breath to complete the test, this might be a reasonable argument that the test was not refused, but was simply not completed because of a physical issue. Sometimes, if the DWI case involves an accident, the person might not be capable of taking the test because of an injury.

Call a NJ DWI Attorney if You've Been Charged with Refusal

If you have been charged with DWI refusal in New Jersey, you have rights. Whether the incident occurred in Asbury Park, Brick or any other NJ town, it's important that you contact an experienced attorney from Villani & DeLuca in Point Pleasant Beach, New Jersey to help defend your case.
With a conviction for refusal to take a breath test, there is the possibility of harsh fines and the suspension of your driver's license for an extended period of time. Don't make the mistake of not having legal representation to protect you. Call Villani & DeLuca to discuss your DWI refusal case today.

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