New Jersey DWI Attorney John Menzel

What Happens When You Refuse A Breath Test During A New Jersey DWI Investigation

What Happens When You Refuse A Breath Test During A New Jersey DWI InvestigationCan I Still Be Convicted If I Didn’t Agree To A Breath Test After A DWI Stop In New Jersey?

I recommend that most people submit that breath sample if arrested for DWI because the charge of violating New Jersey’s implied consent laws by refusing to submit a breath samples carries penalties almost as bad as, and in some ways worse than, those for a DWI, such as:

  • Extended revocation of driving privileges
  • Interlock restrictions
  • Fines
  • And more…

86% of DWIs involve first offenders, and only on extremely rare occasions does that include jail time. So, for most first-time offenders, I would prefer you come in with a remarkably high reading (even as high as 0.30) than to come to me with a refusal. Why? Because a refusal reduces my ability to do a better job for you.

On the other hand, there’s no obligation under the law to provide a blood or urine sample unless the officer gets a warrant from the judge. To get a warrant for blood or urine testing, the officer will provide the judge with their testimony in what’s called an “ex-parte proceeding.” (“Ex-parte” means only one side gives information.)

Your lawyer can challenge that testimony and ex parte proceeding later in court, but if the judge determines that you must give blood or urine, you must submit it. If you don’t, you can be found to be in contempt and face even greater penalties.

How Can Law Enforcement Prove I Was Drugged, Impaired, Or Drunk And Driving If I Didn’t Give Consent For A Breath Test?

Too often, people hand police officers whatever they want on a silver platter even though they don’t legally have to. For example, you don’t have to do balance tests since there’s no legal requirement to submit to balance testing. Nor do you have to give blood or urine because no legal requirement compels you to do that without a warrant.

Consent to give a breath sample is implied by the state statute. If a person denies a breath test, the officer must get a warrant or meet an exception to the warrant requirement to get a blood test. One of the most common exceptions to a warrant is simply when people give consent because they know their rights. When cops ask, most people agree, and they provide the sample. Later on, if the state can show that you consented to the test, then there’s no warrant needed, and they can use that evidence against them at will.

Aside from plainly giving consent, “exigent circumstances” are another exception to the warrant requirement. You’ll usually see this come up when someone is injured or incapable of communicating where there’s an accident, and there are facts indicating to the officer that alcohol or drugs may be involved. Such facts can include:

  • The presence of prescription bottles or alcoholic beverages in the car,
  • An odor of alcohol or marijuana combined with something else,
  • And more…

Finally, prosecutor will often argue for the judge to draw an inference that you refused because you had a consciousness of guilt. Of course, this is only one inference. Other more innocent inferences include:

  • Being upset because you feel wrongly accused;
  • Invoking a mistaken belief that you have a right to refuse,
  • Having a physical disability like asthma that prevents you from delivering a full sample.

With the guidance of a skilled attorney for DUI Law In New Jersey, you can have the peace of mind that comes with knowing that we’ll make it look easy. For more information on the Refusal Of Blood Test In Drugged Driving Case, a free initial consultation is your next best step. Get the information and legal answers you seek by calling (732) 218-9090.

John Menzel, J.D.

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