I Was Pulled Over for DWI in New Jersey: Should I Submit to a Breath Test?

In this week’s post of our ongoing New Jersey DWI series, we will discuss one of the most common questions facing those suspected of driving under the influence: should I submit to a breath test or refuse to consent? This question is often daunting when your nerves are running high and you’re not sure which decision may become more detrimental to you in the future. Unfortunately, too many times, a simple lack of knowledge or exposure to misinformation can cause you to make the wrong choice, ultimately hindering your chances for a more successful outcome as you seek to resolve your case. As an experienced defense attorney who has represented clients charged with DWI in New Jersey for over 25, I always tell my clients to consent to a breath test for two primary reasons, each of which I will address in more detail below.

Reason #1: Implied Consent and Refusal to Submit to a Breath Test Charges 

Under N.J.S.A. 39:4-50.2, any driver who operates a motor vehicle on a New Jersey roadway is legally considered to have provided his or her consent to submit to a breath test upon request of an officer who has reasonable grounds to believe that the driver is currently under the influence. This is often referred to as “implied consent.” As a result of this legal obligation, a driver who refuses to comply will likely be charged with “failure to provide a breath test,” in violation of N.J.S.A. 39:4-50.4(a). These charges are issued in addition to charges for DWI and may result in enhanced penalties, including a mandatory period of driver’s license suspension ranging from 7 months to 1 year for a first offense. These penalties become increasingly severe for a second offense, resulting in a loss of driving privileges for 2 years, and further severe for a third or subsequent offense, which is punishable by a 10-year driver’s license suspension.

Consider this: If you are stopped for an alleged DWI, you consent to a breath test, and your blood alcohol content (BAC) registers just slightly over the legal limit, you may lose your license for 3 months if it is your first offense. On the other hand, if you refuse to submit to a breath test, you are exposed to a mandatory minimum period of license suspension of 7 months, and may lose your license for up to 1 year, depending on the prosecutor, the presiding judge, and the perceived strength of the State’s case against you.

Reason #2: Potential Ways to Challenge the Admissibility of the Breath Testing Results 

There are a myriad of strategies for challenging the validity of a breath testing reading. Identifying and raising one or more of these issues may be sufficient to undermine these results and have them deemed inadmissible in court. Essentially, this means that the most integral component of the State’s evidence against you cannot be used to support its case. As mentioned in our previous post about challenging the results of a breath test, we may successfully achieve this goal by identifying issues with the machine function; the qualifications of the officer conducting the test; intervening variables such as chewing gum, cigarettes, and inhalers; or failure to fulfill the 20-minute observation period. These defense strategies can be highly effective and may ultimately lead to a dismissal; however, if you refuse to submit to a breath test, this arsenal of defenses cannot work to your advantage. In order to employ these strategies, we must have the reading, the credentials of the officer, the specifications of the machine, and the police report. Without the sample, the State can simply cite your refusal and use much more interpretive evidence to support its case against you.

All in all, it is always in your best interests to comply with the requests of the officer conducting your traffic stop. With the assistance of a seasoned defense attorney, you can address DWI charges and position yourself to achieve the best possible outcome.