As you may know, New Jersey has an “implied consent” statute. This means that any person who drives a vehicle on a public road is considered to have consented to a breath test to determine his blood alcohol concentration. But in order to be convicted for having refused to take the test, the police must ensure that they have followed the proper protocol.

Recently a man was arrested for drunk driving after he was involved in a single car accident. According to a local news report, the man was arrested for driving while intoxicated and then was also issued a summons for refusing the breathalyzer test. In addition his car was impounded under what is known as John’s Law which allows the police to impound the car of someone arrested for drunk driving for up to 12 hours.

In order to sustain a conviction for failing to take a breathalyzer test, prosecutors must demonstrate four elements. First, that the arresting police officer had probable cause to believe that the suspect was actually driving the car while under the influence of alcohol. Second, the suspect must have actually been arrested for driving while intoxicated.

While all of the factors are important, the third factor has recently been a point of contention in criminal cases in the last few years, including a New Jersey Supreme Court case in 2010. The third element requires that the officer requested that the suspect take the breathalyzer test and also informed the suspect of the consequences of refusing to take the test. Finally the fourth element is that the suspect actually refuses to take the test.

Source: Toms River Patch, “Asbury Park Man Charged With DUI, Reckless Driving In South Seaside Park MVA,” Judy Bendar, March 18, 2012