How Failing to Provide Enough of a Breath Sample Can Lead to a Refusal Charge in New Jersey

soap bubbleNew Jersey’s driving while intoxicated (DWI) statute allows prosecutors to use several methods to try to prove that a defendant was too impaired to operate a vehicle. One of these methods requires test results showing that a defendant’s blood alcohol content (BAC) was 0.08 percent or higher, the so-called “legal limit” for DWI. This is the preferred method for most prosecutors, and New Jersey law helps facilitate the collection of BAC evidence. Refusal to submit to a breath test is a separate traffic offense alongside DWI, punishable by a fine and license suspension. Courts have expanded the scope of the refusal statute beyond merely refusing even to attempt to provide a breath sample. The Alcotest device used by New Jersey police to measure BAC requires a sizeable sample, and a refusal charge can result from not trying hard enough. The New Jersey Appellate Division reviewed this sort of situation recently in its decision in State v. Hernandez.

Under New Jersey law, anyone operating a motor vehicle on a public road is deemed to have given their consent to providing a breath sample to police upon suspicion of DWI. This “implied consent” law overrides any concerns about Fourth Amendment rights against warrantless searches or Fifth Amendment rights regarding testifying against oneself. A conviction for a first refusal offense can result in a license suspension for seven months to one year. For a second offense, the period of suspension is two years. A 10-year license suspension comes with a third or subsequent conviction. Fines range from a minimum of $600 for a first offense to a maximum of $2,000 for a third or subsequent offense.

New Jersey police use a device known as the Alcotest 7110 MK III-C to measure BAC. A New Jersey Supreme Court decision from 2008, State v. Chun, established various standards and procedures for the Alcotest. The device requires a minimum sample size to ensure consistency and, to the greatest extent possible, accuracy. Most people must breathe into the device enough to produce 1.5 liters of air, although for women over the age of 60, this minimum amount is lowered to 1.2 liters. They must also breathe into the device for at least four and a half seconds, something that may not be possible for some people. Courts have attempted to distinguish between people who are incapable of providing a sufficient breath sample and those who could provide a sample but do not do so.

The defendant in Hernandez, according to the court, was given four chances to provide a breath sample. He only provided a sufficient sample size on the third try, but the police officer claimed that “the blowing time was too short.” The court affirmed the defendant’s refusal conviction, based largely on lower court determinations that the defendant was intentionally attempting to “circumvent the test” by either not blowing into the device’s mouthpiece for long enough or blowing outside it.

New Jersey DWI attorney Evan Levow has defended drivers’ rights in court for over 20 years. He can help you understand your rights in your DWI case and guide you through the New Jersey municipal court system. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a knowledgeable and experienced advocate.

More Blog Posts:

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense, New Jersey DWI Attorney Blog, August 16, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes, New Jersey DWI Attorney Blog, May 25, 2016

New Jersey Courts Hold that Chun’s Twenty-Minute Waiting Period in DWI Cases May Not Be Used for Delay, New Jersey DWI Attorney Blog, July 28, 2015

Photo credit: Alexas_Fotos [Public domain], via Pixabay.