When an individual operates a motor vehicle in New Jersey, he impliedly agrees under the NJ Consent Law to provide a breath sample if requested to do so by police. Refusal to perform a breath test subjects an accused to the punishment set forth under N.J.S.A. 39:4-50.4, commonly referred to as the New Jersey Refusal Law. The penalties for Refusal, although similar to DWI, do differ for a First Offense Refusal, Second Offense Refusal, and Third Offense Refusal. Notwithstanding the plain language of both of these laws, our lawyers regularly uncover issues rendering refusal charges improper. Examples of recurring questions that crop up include, was there reasonable basis to believe that the accused was intoxicated such that a breath test request was valid? Did the officer adhere to the law when he informed the driver of his rights with reference to the breathalyzer test? Did the motorist really refuse? Did the accused understand what was being requested? Was there an attempt to cure the refusal?
What the Prosecutor Must Prove
To obtain a conviction under 39:4-50.4, the state must prove that: (1) the police officer possessed probable cause to believe that the accused was driving while intoxicated or operating under the influence of drugs; (2) the defendant was arrested for DWI or DUI; (3) there was a proper request to submit a breath sample; and (4) the accused refused to perform the test.
- The Probable Cause Requirement. An officer fulfills this element where he possesses a well grounded suspicion that the accused was the operator of a motor vehicle and was under the influence of alcohol or drugs at that time. In terms of “operation”, New Jersey refusal cases provide that an intention to operate satisfies this requirement. Accordingly, police can request the performance of a breath test if there is reasonable suspicion to believe that the accused operated or intended to operate a vehicle. Reasonable suspicion of intoxication must also be established and this subject is discussed in more detail at Probable Cause to Arrest.
- Arrest. The arrest requirement is self-evident — an arrest either happened or it didn’t.
- Proper Demand to Perform the Test
- Accused Refused. This question is easy to answer when someone flat out refuses. This occurs where the accused responds affirmatively with a “NO” or the equivalent. We have included a link to State v. Pandoli which discusses the subject of flat refusal in more detail. There are also those cases where the accused remains silent after being read the consent form. While courts have concluded that silence does not suffice as a proper response, our attorneys find that silence can often provide a basis for bona fide argument to avoid conviction. We have prepared individual pages with respect to the more complicated issues on this subject including insufficient breath volume or test samples, language barriers, and physical incapacity.
Burden of Proof. The state has the burden of proving each and every element of a refusal charge beyond reasonable doubt.
Adverse Inference. If someone refuses to take the breathalyzer, the law allows this conduct to be used as evidence in proving that an accused was driving while intoxicated. In other words, the municipal court judge deciding a DWI charge may infer from the refusal that the defendant was drunk. A copy of the main case on this subject by clicking State v. Stever.
Delay in Administering the Test. It is obviously understandable that an accused would attempt to delay blowing into the breath test machine if they fear a positive result. Conversely, the police want the test done promptly as there is a legal requirement that the breath sample be obtained within a reasonable period of time after operation and/or arrest. NJ courts have held that intentional delay by an accused in blowing or even responding to a request for consent may be construed as refusal. It can be a very grey area when delay is used as the basis for refusal and this is where representation by a seasoned dwi lawyer like the ones at our firm can prove invaluable.
Plea Bargaining a Refusal Charge. A prosecutor is strictly prohibited from plea bargaining a first refusal offense. This bar to plea bargaining does not apply, however, to a second or subsequent refusal offense.
Other Important Considerations. We have provided additional subject pages on Curing a Refusal, the Confusion Doctrine, Out of State Refusal Convictions, Right to an Independent Chemical Test, and Division of Motor Vehicle Administrative Suspension for Refusal. We should also keep in mind that, while refusal is a separate offense from a DWI charge, a prosecutor is obviously lacking scientific evidence to convict you of drunk driving. Field sobriety tests, eye witness observations, and other “probable cause” evidence will therefore have to be used to prove intoxication and this evidence can be inaccurate — our attorneys will challenge them as insufficient evidence for a DUI/DWI conviction. For additional information concerning the elements of the offense and the standard of proof to be applied in a Refusal case, the New Jersey Supreme Court decision of State v. Cummings 184 N.J. 84 (2005 is provided. For a discussion on what constitutes probable cause to request submission to a breath test, refer to State v. Wright 107 N.J. 488 (1987). You can also refer to State v. Sherwin 236 N.J. Super 510 (App. Div 1989), for information concerning the number of breath samples and consistency between the samples, which is required under the law of New Jersey.
Every situation is unique, and there are a number of defenses to drunk driving charges and refusal charges. Never assume you should automatically plead guilty to either a DWI or a refusal charge. If you would like to speak with one of our lawyers about circumstances surrounding your arrest, please call toll free 877-450-8301 or e-mail our Red Bank law firm to arrange a free consultation with a lawyer.