New Jersey DWI Attorney John Menzel

Understanding DUI Law In New Jersey: Refusing A Blood Test


Understanding DUI LawThis article unpacks:

  • What authorities must establish to convict you of refusing a breath test.
  • The differences between DWI and breath test refusal.
  • Advice when charged with a DWI and breath test refusal.

Can I be convicted of DWI if I refuse to provide a blood or breath sample?

How we approach a breath test refusal case is very different from how we approach a case with a breath test. Because breath test refusal cases deprive the State of the objective proof a breath test result provides, its DWI case is weaker than it would otherwise be. However, prosecutors can argue that you refused because you had a consciousness of guilt—i.e., you believed the result would convict you. But this is only one possible inference. Maybe you refused because you felt mistreated. Maybe you mistakenly believed you had a right to refuse. Maybe you were physically incapable of delivering a breath sample. The only way to determine which inference is most likely is to review police reports and video before deciding whether to go to trial. Also important is whether your attorney is familiar with the judge and how they think.

These are the elements that the State must prove beyond a reasonable doubt to get a breath test refusal conviction: (a) probable cause to arrest for DWI, (b) an arrest for DWI, (c) proper advice about your rights and responsibilities regarding submission of breath samples, and (d) something other than an agreement to submit samples.

The first two elements—probable cause to arrest and an arrest for DWI—usually go hand in hand, although on rare occasions, they do not co-exist.

To establish the third element, a police officer will testify that you were read a document called a “Standard Statement.” This statement has two parts. If the answer to the first part is negative, ambiguous, or non-existent, the officer must read a second part.

Finally, the State must establish beyond a reasonable doubt that you failed to submit to the breath test by saying no, asking for an attorney or a witness, or remaining silent.

Once the State establishes the four elements, they have what lawyers call a prima facie case—i.e., enough evidence to obtain a conviction. If any element fails, the person charged is not guilty.  Bu if the State establishes a prima facie case, the defense may choose to present an affirmative defense like physical inability to provide a sample or confusion as to what your rights permitted you to do.

Many believe they have a constitutional right withhold breath evidence. They mistakenly believe the Fifth Amendment constitutional right to remain silent and Sixth Amendment constitutional right to consult with legal counsel permits them to decline breath testing. But these constitutional rights only apply to testimonial evidence—i.e., answers to questions intended to elicit information. They do not apply to questions which merely direct a person to do something, like, “Now, will you submit samples of your breath?” Nor do they apply to requirements to provide real or tangible evidence like breath. But if the defense can persuade a judge that you actually believed mistakenly that you had a constitutional right to refuse, you could be found not guilty.

Proving a state of mind is extremely difficult. Defendants have a right to remain silent, and no one can infer or argue consciousness of guilt based on a defendant’s decision to not testify. But to establish confusion, the defendant is usually the only source of evidence of the confused state of mind. When a defendant testifies, the prosecutor can cross examine and argue that he or she was incredible just as can be done with any other witness that testifies. Political issues can also affect how a judge interprets such testimony.

Penalties for breath test refusal are very similar to those for drunk driving. Prosecutors will often let defendants “pick their poison”—i.e., plead to either the refusal charge or the DWI charge. Punishment for a first offense refusal is more severe than that for a first offense DWI in that the DWI conviction mandates three months of alcohol ignition interlock restriction while the refusal requires nine-to-fifteen months of alcohol ignition interlock restriction. However, while a prior DWI conviction will enhance a subsequent DWI or refusal conviction, a prior refusal conviction will only enhance a subsequent refusal conviction and not enhance a subsequent DWI conviction. Also, for most people, there is less of a social stigma attached to a breath test refusal that there is to a DWI.

Unless proofs demonstrate that the person is so visibly intoxicated that there is a significant risk of conviction for DWI, we generally advise against pleading guilty to DWI. Long-term, it is better to have a refusal conviction on your record than the DWI.

With the guidance of a skilled attorney for DWI Law, you can have the peace of mind that comes with knowing that we’ll make it look easy. For more information on DWI Law in New Jersey, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.

John Menzel, J.D.

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