NJ 39:4-50.4a. Refusal to submit to breathalyzer.

Defending NJ 39:4-50.4a.  Refusal to submit to breathalyzer.

After you read the following NJ Criminal Statute (Refusal to submit to breathalyzer) you may decide that you need the help of a lawyer, or need a legal interpretation of how this statute applies to your case.  The firm of Villani & DeLuca has experienced criminal lawyers with over 20 years of experience, including a former municipal prosecutor.  Call the number above for a free 24×7 phone consultation or read more about the drunk driving charge.

NJ Statute: 39:4-50.4a.  Revocation for refusal to submit to breath test; penalties.

a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years.  A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.

The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.  In addition to any other requirements provided by law, a person whose operator’s license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident.  For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50.  In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.  The person also shall be required to install an ignition interlock device pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).

b.For a first offense, the fine imposed upon the convicted person shall be not less than $600 or more than $1,000 and the period of license suspension shall be not less than one year or more than two years; for a second offense, a fine of not less than $1,000 or more than $2,000 and a license suspension for a period of four years; and for a third or subsequent offense, a fine of $2,000 and a license suspension for a period of 20 years when a violation of this section occurs while:

(1)on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(2)driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(3)driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.

It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing.  Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

L.1981, c.512, s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5; 2004, c.8, s.1; 2007, c.267, s.2; 2009, c.201, s.5.

What is Refusal to Submit to Breathalyzer?

In New Jersey, every motorist that drives on the state’s highways impliedly consents to have their breath tested by the police officers that patrol those roads according to 39:4-50.2 (Consent to Breathalyzer). Refusing to provide a breath sample is covered by 39:4-50.4a. The statute lays out the penalties involved if you refuse to submit a breath sample, which are equal, if not harsher than a DWI charge. Historically, the refusal statute was weak and did not punish as harshly as the DWI statute. This lead to a loophole which many intoxicated motorists took advantage of. Weary of this fact, the legislature responded with a refusal statute that takes the loophole away.

How Will the Prosecutor Convict Me for Refusal?

Once the police officer pulls you over for suspected intoxication, he will conduct field sobriety tests and then read you a lengthy standard statement that outlines all of your rights under the law. Once the statement is read, the police officer will ask you to submit to a breath test. If you give an answer that is an unequivocal “no”, the police officer will report that you have refused to submit to the breath test. The prosecutor will use the testimony of the officer to obtain a conviction for refusal. Also, the officer may have deemed that you have refused because you did not blow into the machine properly or fully after multiple tries. The prosecutor will also have to prove by a preponderance of the evidence that the police officer had probable cause to pull you over in the first place.

How Can I Defend Against a Refusal Charge in NJ?

An experienced DWI and refusal defense attorney may be the best option because of the intricacies of the refusal statute. It is important to look at each individual case carefully to determine if: (1) the police officer had probable cause to arrest you; (2) the police officer read you the standard statement accurately; (3) you answered with an unequivocal “no”; and (4) everything was recorded properly in the police report. Attacking these points usually will provide a good defense at trial. The prosecutor must prove all elements of the offense beyond a reasonable doubt, so a good defense attorney will cast doubt on some or all of the elements to provide a good defense.

What Penalties Do I Face for a Conviction Under the Refusal Statute?

As previously mentioned, the penalties for refusal are designed to be just as harsh as the DWI penalties. For a first offense under the refusal statute, you will face: (1) a mandatory license suspension of between 7 months to 1 year; (2) a fine of between $300 and $500; (3) participation in an Intoxicated Driver Resource Center (IDRC) program; (4) mandatory installation of an ignition interlock device in your car during your license suspension and up to a year once your license is restored; and (5) other administrative costs and contributions to various funds. It is important to note that N.J.S.A. 39:4-50.17 authorizes the mandatory use of an ignition interlock device, which is designed to prevent operation of an automobile while any alcohol is present in the driver’s system. Do not plead guilty to refusal in New Jersey. Instead, call an experienced DWI defense attorney. Call Villani & DeLuca today for a free initial consultation about your charge.

AKA: NJ Criminal Charge 39:4-50.4a, Violation 39:4-50.4a, Offense 39:4-50.4a

Disclaimer: A copy of this statute has been provided for your information. This wording was current from the NJ website lis.njleg.state.nj.us as of August 2012.

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