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:
“According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle may be revoked by the court for a period of no less than seven months and no more than 20 years. The Court will also fine you a sum of no less than $300.00 and nor more that $2,000.00 for your refusal conviction.”
Twenty years? Really? That would only be for a third offense refusal in a school zone, where the two prior convictions for refusal were in a school zone, as well. That would be an extremely rare circumstance.
It’s the seven months that is also significant to someone who has never been arrested, and who says that he/she had no alcohol whatsoever to drink. That person has likely watched many television shows and heard the often repeated statement, “You have the right to remain silent” and the right not to give evidence against yourself. But, according to the courts in New Jersey and the United States Supreme Court, that does not apply to breath testing. If you have a driver’s license, you have given your consent to submit to breath testing in New Jersey, whether or not you are an NJ licensed driver or a driver licensed in another state.
There is a specific paragraph in the Implied Consent Warning that cautions against relying on the right to remain silent, as well as the right to speak to an attorney before breath testing:
“Any warnings previously given to you concerning your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give or to delay giving samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician or anyone else present, for the purpose of taking the breath samples.”
This sets up a confusing situation where someone believes they have a right to speak to an attorney or to decline to give evidence against them self, yet they are being told by a police officer that they don’t have those rights.
Just because you have been charged with Refusal in New Jersey doesn’t mean that you will automatically be convicted of that charge and the accompanying DWI charge. There are many defenses to Refusal and DWI in NJ that you should explore with a qualfied DWI lawyer that knows how to challenge these cases in all courts in the state of New Jersey.