New Jersey DWI Attorney John Menzel

What Are The Consequences Of A DWI Refusal In New Jersey?


In New Jersey, a breath test refusal is an offense, just as a DWI is an offense. That means that a breath test refusal is handled typically alongside any other charges that are issued. Most often that includes a traffic offense or other related offense. All charges are heard in a single, unified forum that is in the municipal court. This differs from other states where a breath test refusal is dealt with as an administrative matter by the Division of Motor Vehicles and Motor Vehicle Commission and the DWI case is treated separately in the criminal court or traffic court.

In New Jersey the DWI and refusal go hand in hand, at the same time in the same forum. The refusal itself is a very significant offense. Its penalties are almost the same as those for a DWI, and in fact a first offense refusal is actually punished more severely than a first offense DWI. For example, for a first time DWI conviction an individual will receive a three month driver’s license revocation whereas the refusal would lead to a seven month revocation. Additionally there is a requirement that there be an alcohol ignition interlock on the person’s vehicle for six to 12 months, beginning when the person gets their license back. Therefore, it is generally not recommended to refuse a breath or blood test in New Jersey.

Additionally, when it comes to refusals, if someone is a repeat offender, in New Jersey, prior DWIs are counted as if they were prior refusals. That means if a person was convicted of a DWI and then down the road, say within 10 years, he or she is charged with another DWI and this time refused the blood or breath test, he or she would actually be looking at a two year driver’s license revocation.

The reason is due to the fact that a second offense refusal leads to a two year revocation. A third offense refusal is much more severe, being a 10 year revocation. The only beneficial thing to a third time refusal in New Jersey versus a third time conviction for a DWI, is a person doesn’t have to go to jail for a refusal. With a third offense DWI, there is a six month jail term. Those are the basic similarities and differences when it comes to DWIs and refusals in New Jersey.

Under What Circumstances Do Police Officers Require Someone To Take A Breath Test?

In order for police officers to request someone to take a breath test, that means they have to have probable cause to arrest the individual for DWI. Probable cause is based on the information available to them at the time meaning they have enough reason to bring the person into custody for the purpose of continuing their investigation. The continuation of that investigation is the breath test. For example, probable cause means they have taken notice of certain facts such as the manner of driving or admissions that a person has given to actually having consumed alcohol. Additionally the officers may have asked the individual to do certain field sobriety tests including reciting the alphabet and counting backwards.

They will also frequently have people do standardized field sobriety tests, which include standing on one leg, standing heel to toe and walking heel to toe. Another field sobriety test commonly used is referred to as the horizontal gaze nystagmus test. This test is where the person is told to keep his or her head still and to follow a stimulus, such as a pen or the officer’s finer, with their eyes only. He will move the stimulus back and forth in front of a person’s face. What the officer is looking for is an involuntary jerking of the eyeballs.

The training police officers receive leads them to believe they are able to find some physiological manifestation of alcohol impairment; which is not exactly correct. The problem is that itself, is part of the fallaciousness of the procedure. This is one reason Attorney John Menzel warns people not to take those tests. The whole idea behind probable cause is simply that there has to be reasonable, articulable suspicion that someone is under the influence. Reasonable and articulable just means something that the officer can put into words such as describing that a person couldn’t keep their leg up for a certain amount of time or raised their arms because they were having difficulty walking heel to toe. To a judge that may just be enough to indicate that the officer had a reason to arrest someone for the purpose of continuing the investigation. Of course this ignores the idea that impairment can come from many sources, such as being nervous, tired, distracted, or even having a physical problem that may hinder the tests.

At the probable cause stage, if alcohol is one of the explanations that can tie the observations together, that gives the officer reason to make his arrest. He will then try to rule out all other sources of impairment by having the person submit to a breath test. The idea is that if the breath test comes up positive for alcohol, that eliminates all the other explanations and the person must be guilty.

Additionally the breath test refusal is unlike the observational evidence, which tends to be rather subjective in character, very much depending on the bias or prejudices of a person reporting those observations, the police officer. The breath test, itself, however, is viewed as something objective. The reason there is a breath test refusal law is to encourage people to provide that evidence which the law considers to be objective in character; that is the breath test result.

If the breath alcohol content is a 0.08 or higher, the law says the person is under the influence. This is the reason there is implied consent law. Probable cause is really the justification for the officer to arrest a person for the purpose of having him submit a breath test.

For more information on DWI Refusal In New Jersey, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 394-1394 today.

John Menzel, J.D.

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