When you receive your driver’s license in New Jersey, you give your implied consent to submit to chemical tests. That means if you are arrested for a DUI/DWI offense, you are required by law to submit to a breath test.
Refusal to take a breath test when ordered to do so by law enforcement results in being charged with the crime of refusal. Typically in addition to being charged with the refusal, you will also be charged with DUI/DWI, because a breath test result is not required to convict you of driving under the influence. Therefore, in refusal cases, the defendant usually finds himself charged with both.
The New Jersey statute governing the offense of Refusing to Submit to Breath Testing is N.J.S.A. 39:4-50.4(a). New Jersey law requires you to take a breath test if you are arrested for a DWI. Under the “implied consent” law, by virtue of having a driver’s license you agree to the giving a breath sample upon an officer’s request if the officer has “probable cause” to believe that you have been driving while impaired. You cannot be forced to take the breath test, however, refusing to submit to breath testing subjects you to a violation of the Refusal law. Unfortunately, the penalties for a Refusal are identical to those for a DWI with 2 exceptions. First, there is no tiered sentencing structure for a first offense. The license suspension for a Refusal is the same as DWI under the SECOND TIER, thus a driver’s license suspension for a period of between 7 months and 1 year. Secondly, a third offense Refusal, unlike a third offense DWI, does NOT carry jail time. It does, however, carry with it the same 10 year driver’s license suspension as a DWI.
If you find yourself charged with a Refusal, the officer will almost always charge you with DWI as well, thereby subjecting you to a double set of penalties.
Fortunately, there are defenses to a Refusal which include the “confusion doctrine”, language barriers, and mistakes made by the police concerning the legal requirement that certain warning and instructions be properly explained to a suspect.
A successful defense in a case involving a person charged with both DWI and Refusal could result in a dismissal of one of the offenses in exchange for a guilty in the other.