Breath Test Refusal Attorney Union County NJ
Serving drivers across Linden, Elizabeth, Scotch Plains, Westfield, Plainfield, and Union County
Obtaining a driver’s license in New Jersey is a privilege, not a right. This means that the constitutional protections afforded to individuals in other areas of the law do not completely apply when driving in New Jersey. In obtaining a driver’s license or driving on New Jersey’s roadways, you have automatically consented to give breath samples when stopped for suspicion of driving while intoxicated. This area of the law is known as “implied consent”.
Under New Jersey Motor Vehicle Code, N.J.S.A. 39:4-50.2, if you operate a motor vehicle on any “public roadway, street, highway” or public area in the State of New Jersey, you will be deemed to have “given consent to the taking of breath samples.” Essentially, the State has the right to give you a breath test if a police officer has reasonable grounds to believe that you have been operating a motor vehicle while intoxicated.
Breath Test Refusal and Implied Consent
The conversation about implied consent usually happens when a person has been charged with a “refusal” to submit to a chemical breath test. The person charged must understand that a refusal charge is the equivalent of a charge of DUI itself. Often, the person receives a ticket for the initial reason for the stop (i.e. speeding, reckless, careless, failure to maintain a lane), the refusal, and DUI. Inf this situation, if the prosecutor proves that you have refused to take the breathalyzer and that you drove while impaired, you will be subjected to the penalties of each ticket.
Probable Cause and Reasonable Suspicion of Driving While Impaired
First, the officer that stopped you must have probable cause to believe that you committed a violation of the motor vehicle code. Once stopped, the officer must demonstrate to the court that he had a reasonable suspicion that you were driving while impaired and that he had the right to demand a breath test. For example, perhaps you had slurred speech, an odor of alcohol, or bloodshot/watery eyes. Next, the officer will likely have you perform field sobriety tests such as balance tests, the walk and turn test, and the horizontal nystagmus test.
Breath Test Administered Once Officer Believes Driver to be Intoxicated
After an officer has cause to believe that you were driving while intoxicated, he will take you back to the police station to give you a breath test. He has no right or authorization to physically force anyone to submit to a breath test; however, you have given your consent by driving in the first place. This is why the law allows for a person to be charged with “refusal” after the officer informs him or her of the consequences of refusing a breath test.
Required to Sign a Refusal Form NJSA 39:40-50.2
An officer must follow instructions under section NJSA 39:40-50.2 while administering the breath test and if someone refuses to submit to the test. There is actually a form that the officer follows in accordance with these instructions. For example, the officer must read the person a form advising him of the consequences of refusing to take the breath test. He must ask the person again whether the person refuses to submit to breath tests and the officer must record the person’s response. If the person refuses to consent or refuses to respond, the instructions will be read again. If no response is given, the person will be deemed to have refused and will be charged with a refusal offense.
Penalties for Breath Test Refusal in New Jersey
Penalties for refusing a breath test include:
- 7-month license suspension for a first offense, fines of $300-500;
- 2 years loss of license for a second offense, fines of $500-$1000;
- 10-year loss of license for a third offense, fine of $1000.
If you are charged with both a DUI and refusal, the loss of license for refusal can either be consecutive or concurrent to the suspension for the DUI. If your suspensions for the DUI and the refusal are concurrent, it means that they run at the same time. If your suspensions are consecutive, it means that they run back to back, one after the other. For example, if you had a consecutive 7-month suspension for refusal and 12-month suspension for DUI, your license would be suspended for 19 months.
Call an Experienced Criminal Defense Attorney in Linden NJ Today
Whether you made the decision to submit to the chemical test or you refused, New Jersey implied consent law can have a substantial impact on your driving privileges and your future. Retaining an experienced attorney can ensure you have someone on your side who understands the law and the court system as well as someone who will fight for your rights.
Contact the experienced DUI/DWI lawyers at Law Offices of Edward Cooper, to schedule a free initial consultation. Convictions for DUI and Refusal can have a devastating impact on your life. Despite implied consent laws, you have rights and possible defenses that may help in avoiding these punishments.
Our traffic attorneys have extensive experience and successfully helped clients in Linden, Elizabeth, Scotch Plains, Westfield, Plainfield, and across Union County. Contact Attorney Cooper’s Linden offices anytime at 908-481-4625 for a free consultation.