Refusing to take a Breath Test in New Jersey: “No” does not always mean “conviction”

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.

So, what are the defenses? Each case, of course, is different, and has to be analyzed on its own, so it is always best to consult with an attorney who is experienced and knows how to defend a DWI and refusal case. One significant defense is that the officer who processed the arrestee did not read the correct “implied consent form“. This is especially true now, after a recent case from the Appellate Division called State v. Tirado.

In Tirado, the officers’ testimony did not establish that the appropriate statement was read. The Appellate Division stated that because the state did not prove beyond a reasonable doubt that the proper statement was read in an accurate manner, the refusal charge against Mr. Tirado had to be dismissed.

Tirado is a very important case, however it is unpublished, which makes it’s impact a little less forceful. However, because it is an Appellate Division case, it has statewide value. This case follows a line of decisions from the New Jersey courts that stress the importance of adherence to protocol: if the state (the police) do not follow their own procedure, the evidence is tainted and is either viewed in a very suspect manner, or, as in this case, it is excluded from evidence.

Many people make the mistake of assuming that DWI and refusal cases are all the same, or that they have little variation. The more experienced DWI attorney will look at every fact and piece of evidence in each case to determine how to best defend the client. Even the worst and most difficult cases have facts that can be favorable to the accused. The question is, what are these facts, and how the facts can be used to help defend the case.

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