Illness or Injury Defense to NJ DWI Test Refusal

Criminal Defense LawyerWhen a police officer requests that a driver take a breath test after being pulled over for driving while intoxicated (DWI), it is required under New Jersey law that he or she submit a breath sample. If the person refuses, it is a traffic offense punishable by suspension of the individual’s driver’s license, fines and required attendance in IDRC alcohol courses.

Upon receiving a driver’s license in New Jersey, it is implied that the driver has agreed to submit to a breath test for DWI whenever asked to do so by a law enforcement officer. Even if the individual has not been drinking, the refusal to take the chemical breath test when suspected of drunk driving can still lead to the suspension of the driver’s license as well as other penalties.

The Officer Must Follow Certain Rules in a DWI Case

There are rules to bringing a charge of DWI refusal to court and gaining a conviction. The police officer must have had probable cause to suspect that the driver was driving drunk to make the traffic stop. Upon being placed under arrest, the defendant must refuse to take the test either on purpose or through inability to physically submit a breath sample. Assuming that the breath test was also being operated properly by law enforcement at the time of administration, a charge for refusal is likely to hold up in court.

What if the Defendant was Ill or Injured and Couldn’t Take the DWI Tests?

What happens, however, if the defendant claims that he or she is unable to take the DWI breath test or perform field sobriety tests due to illness or injury? There could be extenuating circumstances that prevent the individual from being able to properly complete DWI tests, regardless of his or her level of intoxication.

If the person suffers from asthma, for example, taking a breathalyzer test may be more difficult if the proper breath sample isn’t attainable within a few attempts. Or the driver might be injured as a result of a previous incident or surgery which could adversely affect his or her performance of field sobriety tests administered at the scene of the traffic stop.

Unfortunately, the refusal to provide a breath sample when asked warrants a charge under New Jersey’s refusal statute, regardless of whether or not the driver purposely outright refused the test. However, if there is a valid condition that could have affected a person’s ability to submit to a breath test or comply with field sobriety tests, it is important that it be addressed with the defendant’s attorney in case it may help his or her defense.

Speak to an Attorney About DWI Refusal Due to Illness or Injury

The penalties for refusing to take a DWI test can range from a license suspension for seven months to one year to fines that can amount to between $300 and $500. The rates are higher if the infraction is committed in a school zone. For subsequent charges—second and third offenses—the penalties grow worse with the third offense carrying with it a ten year suspension of the driver’s license. There is the possibility, however, that a person was unable to take the test because of a physical incapability to perform as directed by the arresting officer. The existence of an illness or injury may help strengthen your case, but it will not guarantee a complete dismissal of the charges.

If you have been charged with DWI test refusal in Ocean County or Monmouth County, New Jersey, contact the DWI lawyers at Villani & DeLuca today for help. The attorneys at our office offer free initial consultations for new DWI clients and can answer all of your questions and guide you in the right direction. Call today!

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