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 penalties for breath test refusal for first offenders are actually worse than the penalties for a DWI. With a DWI you might be looking at a 3-month revocation, whereas if there is a refusal for a first offender, it’s 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 of a second offender, a breath test refusal is a two year revocation of driving privileges just as it is for DWI, and there is an alcohol ignition interlock requirement for refusal just as there is for a DWI.

There is a community service requirement for DWIs that does not apply to breath test refusals, so marginally their breath test refusal would be a little less than a DWI. At the 3rd or subsequent offense level, a DWI is subjected to a 10-year revocation followed by up to 3 years of interlock and 6 months in jail. For a refusal, you would get the 10-year revocation, and you would get the interlock but there would be no jail. The penalties for the refusal are pretty 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 (888) 394-1394

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

The law basically requires 3 things in order for a breath test to be admissible. You have to look and see that the person administering the test is properly certified to do so. That’s established by looking at something called an Alcotest Certification replica card, which shows when the person was initially certified and whether they got their proper refreshers. The second thing we have to do is to look and see if the instrument and the associated equipment are in proper operating condition. The state does that by providing certain documentation from the manufacturer of that instrumentation as well as some calibration check documentation created by a New Jersey State Police breath test coordinator instructor. These are the state troopers that are charged with the responsibility to put the equipment through its paces and make sure it’s operating properly.

Obviously, you want to see all the numbers matchup on their report. There is cross-referencing to the manufacturer documentation certifying the equipment is in proper operating condition. Obviously, that breath test coordinator instructor has to be properly certified to perform his functions just like the breath test operators. Probably where we have the greatest success is by making sure the state establishes that the instrument was operated properly. This includes making sure that the Alcotest operator or someone associated with him can establish that the subject was observed continuously for at least 20 minutes immediately before submitting breath samples. Other things that those people are required to do is to remove all portable electronic devices from the testing areas. Things like cellphones, portable radios, portable microphones, cameras and other such items.

They have to make sure that the subject doesn’t burp, belch or regurgitate. One of the things we can look for is also to examine the cop and see what he remembers about whether he walked in and out of the room. Most of the time they are writing their reports that they stayed in the room, but when you press them on the stand, their testimony will change to some degree. If that happens, it can open up opportunities to get the breath test excluded from evidence. One of the more surprising things and this gets back to the state’s obligation to prove that the equipment is working properly, is that prosecutors frequently make mistakes by putting the incorrect documentation into evidence. I would say this happens maybe half the time.

That’s not an exaggeration and when that happens, the defense attorney just has to be savvy enough to make the appropriate objection and keep it 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 in evidence. Once the record is closed and that’s 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 limit and take them to trial. It’s just one of the more surprising things to me that I’ve found 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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