After the police pull drivers over for suspicions of driving while intoxicated (DWI), they will usually investigate for signs of intoxication. The police will likely want to test a driver’s blood alcohol concentration (BAC) to determine if they are intoxicated. Whether or not you can refuse this test depends on where and how it is administered.
Portable breath tests (PBTs) may be administered at the scene of your DWI stop but can be refused without legal penalties. Official chemical testing can only be performed after the police arrest you and cannot be refused without penalties. Refusal to submit to official chemical testing may be met with charges in addition to your potential DWI.
If you were recently stopped by the police for a suspected DWI and refused to submit to a breath test, you might be in bigger trouble than you know. Call our New Jersey DUI and DWI defense lawyers for help. Call the Law Offices of John J. Zarych at (609) 616-4956 for a free case review.
What Is New Jersey’s Implied Consent Statute?
Refusal to submit to official chemical testing after being arrested for a DWI is illegal because of New Jersey’s implied consent statute. This statute, found under N.J.S.A. § 39:4-50.2, states that anyone operating a motor vehicle on any public road in the state is deemed to have given consent to official chemical testing.
The statute comes with a very important caveat. For official chemical testing to be legal, it must be done by an officer with reasonable grounds to believe the person being tested was indeed intoxicated while behind the wheel. If you submit to chemical testing and later discover the police did not have probable cause to arrest you in the first place, the results of the test can be suppressed. Our New Jersey DUI and DWI defense attorneys can help you.
The implied consent law does not apply to PBTs. This type of breath testing is done with portable equipment that is often less accurate than the equipment used for official chemical testing. PBTs are often administered along the side of the road during a DWI stop. The results of a PBT are typically not available as evidence against you but can be used by officers to build probable cause to arrest you for a DWI. You are allowed to refuse a PBT.
Can I Defend Myself for Refusing a Breath Test in New Jersey?
Refusing to submit to a breath test as part of official chemical testing for a DWI is illegal and may be met with penalties. These penalties can be challenged if certain conditions are present in your case. Law enforcement officials must follow strict protocols when administering official chemical breath testing. If these protocols are not followed, the chemical testing might be invalid, and you cannot be punished for refusal. Our New Jersey criminal defense attorneys can help you defend yourself against your charges for refusal.
Generally, the police are required to warn DWI suspects of the consequences of refusal. Suppose you indicated that you did not want to submit to chemical breath testing, and the police did not inform you that there would be additional criminal charges for refusal. In that case, you can challenge any charges for refusal you might now be facing.
In addition, although chemical testing is required, the police are not permitted to use force to get DWI suspects to comply. If you indicated to law enforcement officials that you did not want to submit to testing but were physically forced to do so, we can challenge the test results and have them suppressed.
Official chemical testing may only occur after a suspect has been arrested for an alleged DWI. If you were made to submit to chemical testing without being arrested, or your arrest was made unlawfully without probable cause, you can challenge the testing or any charges for refusing to submit.
Can I Still Be Charged With DUI/DWI Without a Breath Test
You can certainly be charged with a DUI/DWI without a chemical breath test. Refusing to submit to chemical breath testing will not prevent the authorities from arresting you for a DUI/DWI. Still, this does not mean that you should give up and comply with all police requests. Our Ocean City criminal defense lawyers can help you understand your rights and how to protect yourself.
The terms DUI and DWI are often used interchangeably, but they actually mean two different things in New Jersey. A DWI refers to driving while intoxicated with alcohol. A DUI (driving under the influence) is charged when a person is arrested for driving while under the influence of drugs.
Drug DUIs typically do not involve breath testing because a breath test does not measure controlled substances in a person’s body. Instead, the police will look for other signs that you are under the influence of drugs to justify an arrest. Pinpoint pupils, slurred speech, and slow movements may indicate intoxication. Similarly, the police may look for signs of intoxication other than BAC to arrest a driver for an alcohol-based DWI. This means that even if you refuse to submit to chemical testing, the police might still have probable cause supporting DWI charges based on slurred speech, the smell of alcohol on your breath, trouble with coordination, and more.
Can I Be Arrested for Refusing a Breath Test in New Jersey?
While refusing to submit to a breath test as part of chemical testing is a criminal offense, you are unlikely to be arrested for it as an independent offense. Official chemical testing is performed post-arrest. This means you are already in police custody when you refuse. Theoretically, you could be arrested again for refusal but doing so is unnecessary and redundant. Our South Jersey criminal defense lawyers can help you if you are arrested for driving under the effects of alcohol or controlled substances.
Refusing a PBT may happen before you are arrested for a DWI but is not grounds to make an arrest. PBTs are not required by law, and drivers suspected of DWIs can refuse. Since PBTs are not legally required, you cannot be arrested for refusal. However, you might still be arrested if there is enough probable cause other than the PBT.
Call Our New Jersey DUI and DWI Defense Attorneys
Contact our New Jersey DUI and DWI defense lawyers immediately if you were arrested for a DWI and refused to submit to breath testing. Our team can help you fight your charges and protect your rights. Call the Law Offices of John J. Zarych at (609) 616-4956 for a free initial case evaluation.