New Jersey Appellate Decision Minimizes Impact of Breath-Test Refusal Warnings

As most people are aware, the Breathalyzer test is usually the way that the police measure blood alcohol content in DUI cases. But what happens when a driver refuses to take a Breathalyzer test?

When you get your New Jersey driver’s license, you technically give your “implied consent” to the Breathalyzer test. Accordingly, if you refuse to take a Breathalyzer test after a DUI arrest, you can be charged with refusal under N.J.S.A. 39:4-50.4. If convicted, you will face the same penalties of a DUI conviction, including license suspension, fines, and the installation of an interlock device.

Under the law, the police are also required to give a warning to a driver who refuses to take the Breathalyzer test. This warning clearly tells the driver that they will face a refusal charge as a consequence of their refusal.

In August 2010, the Appellate Division ruled that even if a driver first consents to take the Breathalyzer test, the conviction must be thrown out if the police did not read the warning. Many attorneys were able to use this case to successfully dismiss charges and overturn convictions due to the police’s failure to warn.

However, a new Appellate Division decision now rules that if a driver consents to taking a Breathalyzer test, the driver cannot use a failure to warn as a defense. The Court reasoned that after a driver freely consents to a test, any warnings are basically irrelevant. Under this new ruling, the warning is now only relevant when a driver first refuses to take a Breathalyzer test.

New Jersey drivers should also be aware that anything other than saying “yes” to Breathalyzer test will be considered refusal. Thus, any ambiguous or conditional response can lead to a refusal charge. In a recent case, a driver responded that she would agree to a breath test if her mother could be present as well. Such a “conditional” response was considered to be grounds for a refusal charge because it was not an unequivocal “yes.”

In addition, if a driver has issues while performing the actual Breathalyzer test, they can also face a refusal charge. For example, not blowing hard enough into the machine will result in a refusal charge. However, it is important to know the difference between (1) not blowing hard enough, and (2) not being able to blow hard enough. In the second situation, an attorney may be able to successfully fight a refusal charge on the grounds that a medical condition or some other physical ailment prevented the driver from blowing hard into the machine.

Have a DUI case? Have you refused a Breathalyzer test?

Contact the experienced DUI attorneys at Fort Lee Law Offices of Jae Lee Law today or by telephone at 201 346-3800.We handle all issues related to DUI cases including refusal charges. Free Consultation, and we don’t get paid until you do.

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