Articles Posted in Refusal

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.

In all states, including New Jersey, after a DWI arrest, a police officer must read a “standard statement” that contains a warning that the motorist must submit to breath testing when probable cause exists to believe the person is under the influence of alcohol.

The implied consent form includes some pretty alarming language that should make anyone hearing it sit up and take notice, even if the person is in a bit of an altered state. So, when I speak to clients who say that they don’t recall being read anything prior to being asked to submit to breath testing, I think that is a significant issue to explore.

For example, the most significant part of the statement sets forth the potential penalties for failure to submit to the testing:

As a New Jersey DWI Attorney, I acknowledge that “refusal” cases, where a client says he/she will not submit to a breath test, is one of the harder types of cases to deal with in my DWI-only practice.

However, it is not a foregone conclusion that the person who says no will be convicted of refusing to take the test. There are many defenses to refusal charges.

There are very few instances where, in hindsight, refusing to blow would have been a good decision. Refusal is a second charge — in addition to the DWI charge — so, now, you have to worry about defending both charges. Even where the person is sure that he/she is over the limit prior to blowing into the breath testing machine, it is almost always better to blow than not, because there are many more defenses to breath testing issues than refusal cases.