New Jersey DWI Attorney John Menzel

What Are The Penalties For Breath Test Refusal?


Contact a Breath Test Refusal Lawyer in Asbury Park NJ

The first offense penalties for breath test refusal are actually worse than the penalties for a first offense DWI. With a DWI, a first offender faces a 3-month driving privilege revocation, whereas a first offender breath test refusal defendant faces a 7- to 12-month revocation followed by a mandatory period of 6 to 12 months where that person would be restricted to operating vehicles equipped with an alcohol ignition interlock. Penalties for refusal at the second and third offense levels are somewhat less than a DUI, but only marginally so. Regardless, for a second offense, a breath test refusal is a two-year driving privilege revocation, just as it is for DWI, and there is an alcohol ignition interlock requirement for refusal, just as there is for a DWI. Keep in mind that a prior DWI conviction counts as a prior refusal conviction for sentencing purposes.

There is a community service requirement for DWIs that does not apply to breath test refusals, so marginally, a second breath test refusal sentence would be a little less than a DWI. At the third or subsequent offense level, a DWI defendant is subject to a 10-year revocation followed by up to 3 years of interlock and 6 months in jail. For a refusal, that defendant would get the 10-year revocation and interlock requirements, but there would be no jail. Penalties for refusal are serious, and even more serious than the DWI at the first offender level. Therefore, such an incident should not be taken lightly.

A New Jersey Breath Test Refusal Lawyer can be of assistance in such a case. Breath Test Refusal Lawyers in Asbury Park NJ are familiar with the local laws of the state, and they also know the possible defenses that can be taken to have the charges reduced or dismissed. Call the office of attorney John Menzel at (732) 899-1899.

How Do You Potentially Refute Breath Test Results In A DWI Case?

The law requires 3 things in order for a breath test to be admissible.

First, the person administering the test must be properly certified to do so. That is established by looking at something called an Alcotest Operator Certification Replica Card, which shows when the police officer administering the breath test was initially certified and whether the officer got proper and timely refresher courses.

Second, the instrument and associated equipment must be in proper operating condition. The state proves that by providing certain documentation from the manufacturer for that instrumentation as well as a Calibration Record and Calibration Certifications. The documents are cross-referenced to each other by various numbers, which must match up. There is cross-referencing to the manufacturer documentation certifying the equipment is in proper operating condition and cross-referencing between the Alcohol Influence Reports showing the defendant’s breath test result and the calibration records. One of the more surprising things that often occurs at trial is that prosecutors frequently make mistakes by putting the incorrect documentation into evidence.

Of course, the breath test coordinator instructor must be properly certified to perform his functions just like the breath test operators. Calibration Records and Calibration Certifications are created by New Jersey State Police Breath Test Coordinator Instructors. These state troopers are charged with the responsibility to put the equipment through its paces and make sure it is operating properly. A failure to do so correctly is fatal to admissibility. See previous interviews concerning Marc Dennis and State v. Cassidy.

Finally, the State must establish that the breath testing instrument was operated properly. This may be the area where we have the greatest success in making out a defense to admission of breath test results. This includes making sure that the Alcotest operator or someone associated with the operator can establish that the subject was observed continuously for at least 20 minutes immediately before submitting breath samples. They have to make sure that the subject doesn’t burp, belch or regurgitate. One of the things we can look for is to examine the cop and see what he or she remembers about whether he or she walked in and out of the room. Most of the time they are writing their reports and stay in the room with the subject, but when you press them on the stand, their testimony can change to some degree. If that happens, it can open up opportunities to get the breath test excluded from evidence. Also, the State must prove that all portable electronic devices–like cellphones, portable radios, portable microphones, cameras and other such items–were removed from the testing areas, and mouthpieces must be changed between each breath sample.

To raise such defenses, the defense attorney has to be savvy enough to make the appropriate objections and keep them sufficiently vague so as not to alert the prosecutor to the error, while at the same time preserving a challenge later on, should the state rest with the incorrect documentation or omitted foundational information in evidence. Once the record is closed and the errors and omissions are pointed out to a judge, more often than not, the reading will get excluded from evidence. That only happens when you push cases to their limits and take them to trial and can be one of the more surprising things that occur when I try cases.

Only a New Jersey Breath Test Refusal Lawyer can understand the complexities of such cases. Breath Test Refusal Lawyers in Asbury Park NJ are also very familiar with the local laws of the state.

For more information on Penalties For Breath Test Refusal, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 899-1899 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

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