When I speak with prospective clients who have been charged with Refusal to Submit to Breath Testing in a New Jersey DWI/DUI, I often hear, “How can I be charged with Refusal? I blew into the machine several times!”
If you have been charged with Refusal, and if you attempted to blow into the Alcotest®, the new breath testing machine in New Jersey DWI matters, you probably have a good defense to that charge. That’s important, because, on a first alleged offense, the suspension for Refusal is much greater than the DWI charge. On a first Refusal, the license suspension is 7 – 12 months, and the suspension on the DWI is 3 months.
Getting rid of the Refusal charge makes the DWI/DUI more defensible. Not only is there one less serious charge to defend, there is no longer an inference that you refused because you were drunk. There is actually a case that says that if you are convicted of Refusal, the judge can infer that you refused because you were, in fact, intoxicated. See State v. Tabisz.
So, what are some of the available defenses to Refusal when you did attempt to blow?
Did the officer read you the second set of warnings on the “Implied Consent Warning” that he/she was supposed to read you prior to administering the breath test. When the officer read you the statement, you consented to giving samples of your breath. You said you would take the test. You did take the test, but, for some reason were not able to give an adequate sample. The officer may have verbally told you that he/she would charge you with refusal if you didn’t give a complete sample, but, unless he/she read you the final paragraph on the Implied Consent Warning, then you have a defense to the charge. See State v. Schmidt.
You may have a physiological defense to your attempts to blow into the Alcotest. It is not an easy blow — it takes more effort to blow into this machine than its predecessor, the Breathalyzer®. If you have any pulmonary or lung issues, or if you are sick, or are a smoker, you may be able to demonstrate that you couldn’t physically provide the required sample.
There are many more defenses to Refusal to Submit to Breath Testing in a New Jersey DWI/DUI case. You should consult with qualified DWI/DUI counsel who can go through all of the facts of your case and determine your best defenses.