DWI Series Part I: The Problem with Refusing a Breathalyzer

• Dan T. Matrafajlo
• Sat Jan 2022
• DWI,
• 0

The sights and sounds of lights and sirens signaling a driver to pull over often create a sense of panic. Anyone who just left the local bar may instantly feel a sense of dread concerning prospective DWI charges. When it comes to submitting to a breathalyzer test, the initial instinct may be to refuse the officer’s request.

Drivers don’t necessarily understand what the law states about giving consent to alcohol breath tests. Most people recognize that operating a motor vehicle is a privilege, which comes with certain expectations. According to NJSA 39:4-50.2, this includes an implied consent to agreeing to the taking of breath samples to determine a blood alcohol reading.

New Jersey law enforcement agencies use a machine called an Alcotest that is not usually implemented until after twenty minutes of observation. Drivers suspected of DWI also undergo other types of field sobriety tests.

The officer must indicate a reason for asking the driver to submit to the breathalyzer test. Quite simply, there must be reasonable grounds that suggest the motor vehicle operator was driving under the influence of either alcohol or drugs.

Consent for Breathalyzer Tests

In the meantime, other rules apply when an individual decides not to submit to a breath test. Additionally, law enforcement officials cannot force the issue by physical force. The law does require the police officers to inform the defendant of the consequences of a breathalyzer refusal. 

Lawyers who defend individuals accused of drunk driving understand the rationale behind the instinct to refuse an alcohol breath test. Unfortunately, clients are often under the misassumption that without proof that their blood alcohol content was above the legal limit, the prosecution cannot proceed with a case.

In the alternative, some clients tell their DWI defense attorneys that they never came out and said no to the alcohol breath test. However, staying silent or offering conditional or ambiguous consent will not work when it comes to fighting the refusal charge.

Truth be told, the refusal to submit to the breathalyzer test actually means at least one additional charge as it violates a separate statute. Driving while intoxicated and refusing to submit to the breath test represent two different offenses.

Penalties for Breathalyzer Refusals

All things considered, breath test refusals factor in when it comes to penalties assessed in drunk driving cases. The laws have changed in recent years as indicated in NJSA 39:4-50.4a, and the noted offenses apply to DWI convictions. Penalties are determined as follows:

• Breathalyzer Refusal/First DWI Conviction: Individual cannot operate a motor vehicle without the installation of an ignition interlock device for nine to fifteen months. The driver forfeits rights to operate a motor vehicle on New Jersey roadways until the installation of the ignition interlock device. The court may also impose a fine of $300-$500 for just the breath test refusal.
• Breathalyzer Refusal/Second DWI Conviction: The fines associated with a breathalyzer refusal for a second DWI conviction are assessed between $500 and $1,000. Driving privileges are forfeited for not less than one year or more than two years following the installation of the ignition interlock device.
• Breathalyzer Refusal/Subsequent DWI Convictions: A driver with three or more DWI convictions who refuses a breath test faces other penalties. First and foremost, comes with a loss of driving privileges for eight year years. Installation of the ignition interlock device follows and is required for at least two years after the restoration of the driving privileges. The fine for not submitting to a breathalyzer in this cases stands at $1,000.

Retroactive Application of New Penalties

Meanwhile, those accused of DWI before changes in the law know that the penalties for breathalyzer refusal came with more consequences. Some hoped they might be eligible for retroactive application of the new penalties.

This month, an unpublished case decided by the New Jersey Appellate Division considers a reduction in the penalties assessed based on the statutory changes.

In State v. Medina, the defendant pled guilty to both drunk driving and refusing to take on a breathalyzer test in a motor vehicle stop in 2019. The sentencing of the defendant  was based on existing law at that time. Although the sentencing on the refusal charge ran concurrent with the drunk driving conviction, the defendant appealed to the court for a change of sentence based on the new law.

As it turns out, the defendant’s charges stemmed from an incident five months before the DWI laws changed in New Jersey. The defendant asked the court to consider changing his sentencing on the breathalyzer charges from suspension of his license. More particularly, the defendant requested the suspension be changed to the installation of the ignition interlock device.

The summation of the court’s legal opinion states that “If the Legislature intended to apply the revised DWI statute for any conviction occurring after December 1, 2019, it would, and could, have so stated.” Therefore, the DWI statute in place when the defendant refused the breathalyzer test was the one that mattered in this case and others like it.

Have Questions about Breathalyzer Refusals on DWI Cases?

The changes in drunk driving law do not lessen the need for experienced legal representation. We can help. Contact the offices of Beninato & Matrafaljo to schedule an appointment.