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Refusing an Alcotest or Breathalyzer Services

Criminal Defense Lawyer

DWI lawyers are frequently asked whether a person should agree to take a breath test, or if a breath test refusal is an option, if they get pulled over by the police on suspicion of driving while intoxicated in New Jersey. Refusing an Alcotest (or breathalyzer) may seem tempting, as a way to avoid incriminating yourself if you have been drinking and driving. However, in New Jersey, you have no right to refuse a breath sample, because all drivers give their implied consent to be tested just by driving on the state roads.

After being pulled over for suspicion of a driving while intoxicated (DWI) charge, the arresting officer will ask the driver to submit to a breath test after arrest. Under New Jersey's implied consent law, any response other than a definite “yes” to an officer's request to submit to a breathalyzer may be deemed a refusal – which carries harsh penalties on top of the DWI arrest.

It is important to consult an experienced NJ DWI attorney with specific questions about how the New Jersey law treats breath test refusals. Your DUI lawyer will analyze your case to see if there are any grounds for exceptions, such as failure to follow proper procedure, lack of probable cause or translation issues.

Our Qualifications

Carmine R. Villani, Esq., founding partner of Villani & DeLuca, P.C., is a former Municipal Prosecutor and has experience in both the prosecution and defense of DWI, DUI and refusal charges in New Jersey. Mr. Villani and his team are experienced NJ DWI lawyers who represents people facing DWI/DUI and refusal charges in municipal court. Mr. Villani is a member of the National College for DWI Defense. He has instructed fellow lawyers about breath test refusal charges and consequences in a continuing education seminar at the New Jersey DWI Institute. When you need a DWI or breath test refusal lawyer in Monmouth or Ocean County, New Jersey, you can't afford to waste time before seeking representation to defend yourself and your rights in court; your choice of legal counsel is important.

Know the New Jersey Breath Test Refusal Law

The New Jersey Implied Consent Law (N.J.S.A. 39:4-50.2)  and the New Jersey Refusal Law (N.J.S.A. 39-4-50.4(a)), when read together state that by getting behind a wheel and driving, you have already agreed to submit to chemical tests of your breath, blood or urine to determine alcohol or drug content, if asked to do so by a law enforcement officer. That means that if you refuse to submit to a chemical test, you will be subject to a fine and automatic license suspension. In most cases, if an officer wants to find out what a driver's blood alcohol level is, a breath test called the Draeger Alcotest® will be used (previously the Breathalyzer test).

Draeger Alcotest®

While extremely sensitive, the Draeger Alcotest® uses a combination of electrochemical and infrared technology to take an accurate reading within a court mandated margin of error. Due to the fact that the Draeger Alcotest® is relatively new and very sensitive, there are many factors that can affect the outcome of a BAC analysis at trial. Having a New Jersey DUI lawyer trained on how to perform a New Jersey specific breath test is extremely valuable to your defense.

Breath Test Refusal Penalties

Because NJ drivers have already implicitly consented to blood or breath tests, they have no legal right to refuse. Refusals come with penalties; those penalties will depend on whether a driver has previously been convicted of a DWI or refusal. In addition to your DUI/DWI charge, if you refuse a blood or breathalyzer test, you will also be charged with refusal. It's important to note that fines and suspension time will be as much as doubled if you are in a school zone.

  • 1st offense: Minimum of $300 fine; insurance surcharges; suspension of license until installation of ignition interlock device; interlock device for a minimum of 9 months, and more
  • 2nd offense: Minimum of $500 fine; license suspension of up to 2 years; insurance surcharges; installation of ignition interlock device for a minimum of 2 years; and more
  • 3rd offense: $1,000 fine; license suspension of up to 8 years; insurance surcharges; installation of ignition interlock device for a minimum of 2 years; and more

Contact an Experienced NJ DUI Attorney for Help

Everyone's situation is different, and there are a number of challenges to drunk driving charges and refusal charges that an experienced NJ DWI refusal lawyer can investigate. The lawyers at Villani & DeLuca, P.C. know exactly what to do to defend your case; we can be reached 24 hours a day, 7 days a week at (732) 709-7757. Call today for a free consultation on how to protect your rights and get you back on the road.

Contact Us Today

Villani & DeLuca, P.C. is committed to answering your questions about Divorce & Family Law, Criminal Defense, Personal Injury, and DWI & Traffic Law issues in New Jersey. We offer a Free Consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.