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Breath Test Refusal Offense

Charged With Refusing to Submit to a Breath Test in Bloomfield NJ or Elsewhere in Essex County

Police almost always request consent to provide a breath sample once they reach a reasonable suspicion that driving while intoxicated has been committed. When police suspect someone of driving while intoxicated, a request for consent to provide a breath sample is made.They will inform you that you have the right to refuse, but that refusal will result in additional charges. In an attempt to avoid detection for intoxication, drivers often refuse to provide their “breath” for the Breathalyzer test. When this happens, the officer typically charges you with an offense under N.J.S.A. 39:4-50.2, “Consent to Taking of Samples Deemed Given; Refusal”. Moreover, because the officers can prove intoxication through Field Sobriety Tests, the driver will end up being charged with both a DWI and a Refusal. The cumulative effect of these two charges is rather significant as each carries its own set of stiff penalties, if convicted.

The criminal defense team at the Law Offices of Jonathan F. Marshall is comprised of former Municipal and County Prosecutors. Our attorneys have spent parts of their careers both defending and prosecuting against Refusal charges. Therefore, the attorneys understand the law and how it is applied to the defense and the prosecution. If you or a loved one are facing charges stemming from a DWI and a Refusal to Submit to a Breathalyzer, then contact our Essex County Newark Criminal Firm and speak with an attorney today at 973-710-1520. Your initial consultation is always provided free of charge.

Refusal to Submit to a Breath or Chemical Test Under N.J.S. 39:4-50.2

Pursuant to N.J.S.A. 39:4-50.2, by simply driving on any public road, street or highway or quasi-public area, a person is deemed to have given consent to the State to perform breathalyzer examinations. However, if a driver refuses to submit to such a test, the Prosecutor must prove the following to convict the individual:

• That the arresting officer had probable cause to believe that the defendant was operating a motor vehicle while being under the influence of alcohol;
• That the incident took place on a public road, street, highway or quasi-public area;
• That the driver refused to submit to the Alcotest machine;
• That the request for the defendant to take the test was made by a police officer who had reasonable grounds to believe that the defendant had been operating a motor vehicle while being intoxicated; AND
• That the attempt to administer the Alcotest machine was conducted in accordance with the provisions of the implied consent statute.

There is an incredibly low threshold to determine what a “refusal” is. Courts apply a standard that anything “substantially short of an unqualified, unequivocal assent to an officer’s request” by the defendant to submit a breath sample will constitute a refusal.

Penalties If You Are Convicted of Refusing a Breath Test

Similar to DWI violations, the penalties for a refusal to submit a blood test in Essex County will vary depending on how many prior similar offenses have been committed.

First Offense Violation. If convicted for refusal to submit to a breath sample, the defendant’s license for at least seven (7) months but not more than one (1) year. The defendant will also face fines ranging from $450.00 to $1000.00, will be required to attend an Intensive Drivers Resource Center for twelve hours and must install the ignition interlock device.

Second Offense Violation. If convicted of a second refusal to submit a breath sample, or refusal in connection with a second offense of driving while intoxicated, the defendant will be subjected to a mandatory two-year suspension of their driver’s license. Additionally, the defendant will be subject to a fine between $700.00 to $1,300.00,  be required to attend an Intensive Drivers Resource Center for forty-eight hours and must install the ignition interlock device.

Third or Subsequent Offense. If the defendant’s refusal to submit to a breath sample is in connection with a third or subsequent drunken driving offense, the defendant will be treated as a third offender. As a third offender, the defendant’s driver’s license will be suspended for a 10 years. This period of may not be served concurrently, but rather consecutively, to any suspension imposed as a result of a companion drunk driving conviction. Moreover, the defendant will be fined $1,300.00, be required to attend an Intensive Drivers Resource Center and must install the ignition interlock device.

School Zone Refusal Charges. If the violation in question occurs within a School Zone, then the penalties will be more severe. These penalties apply when the motorist operates within within 1000 feet of property used for “school purposes” or drives through an approved school crossing. And the accused need not know he is driving through such a zone for the enhanced school zone penalties to apply. If the violation is a first offense within a School Zone then the court will impose a fine between $600.00 and $1,000.00, along with a period of license suspension between one (1) and two (2) years. For a second offense, a fine between $1,000.00 and $2,000.00, as well as a license suspension for a period of four (4) years. For a third or subsequent offense, a fine of $2,000.00 and a license for twenty (20) years.

As you can see, the penalties for a refusing the submit to a Breathalyzer are rather significant. It is definitely in your best interests to take advantage of speaking to one of our DWI Lawyers free of charge. We can be reached 24/7 at 973-710-1520.