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If you got pulled over on suspicion of driving while intoxicated (DWI) in New Jersey, the officer who stopped you almost certainly asked you to take the breathalyzer. Blood alcohol concentration (BAC) readings can be key evidence in DWI cases, and drivers are required to take a breathalyzer during a DWI stop in most circumstances.
So, what if you refused?
This is a delicate situation that requires experienced legal representation. If you refused the breathalyzer, not only can you still be convicted of DWI, but you can also be convicted of a “DWI refusal.” While an experienced New Jersey DWI lawyer will still be able to help you, it is important that you speak with a lawyer as soon as possible.
What Happens When You Refuse the Breathalyzer During a DWI Stop in New Jersey?
In New Jersey, refusing the breathalyzer does not protect you from a DWI conviction. To see why, we can look at the language of New Jersey’s DWI statute:
“A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood . . . shall be [guilty of DWI].”
If you read this carefully, you will see that the law does not require evidence that you were under the influence and had a BAC of 0.08 percent or above. Rather, it requires evidence that you were under the influence or had a BAC of 0.08 percent or above. As a result, even if prosecutors don’t have your BAC, they can still secure a conviction with other evidence of impairment.
If prosecutors don’t have your BAC reading from the breathalyzer, what other evidence can they use to convict you? The answer to this question depends on the circumstances of your case. Generally speaking, however, the types of evidence that may be available to prove that you were under the influence include:
- Police dash camera video footage
- Police body-worn camera video footage
- The arresting officer’s testimony about your driving behavior, your behavior on the side of the road, or your speech and appearance
- The arresting officer’s testimony regarding your performance on the field sobriety tests (FSTs)
- Your own statements to the police (whether made before or after your arrest)
Any of these can potentially be enough on their own to serve as evidence of intoxication in a New Jersey DWI case. If prosecutors have multiple forms of evidence (as will often be the case), this can make it even harder to present a successful defense. But, regardless of the facts at hand, you have defenses available, and once you hire an experienced New Jersey DWI lawyer to represent you, your lawyer will work to challenge the prosecution’s evidence by all means available.
For example, your lawyer may be able to challenge the prosecution’s evidence that you were “under the influence” by:
- Showing that the police violated your Fourth Amendment rights by stopping you without “reasonable suspicion” or arresting you without “probable cause”
- Disputing the arresting officer’s interpretation of your behavior, speech or appearance
- Disputing the arresting officer’s interpretation of your performance on the FSTs
- Fighting to keep your statements out of court (i.e., by showing that the police violated your Miranda rights)
- Showing that prosecutors have withheld exculpatory evidence or engaged in another form of prosecutorial misconduct
But another important fact to know about refusing the breathalyzer during a DWI stop in New Jersey is that it creates a “negative inference” in your case. This means the judge can infer that you knew you were drunk from the fact that you refused the breathalyzer. While this inference can be overcome, overcoming it requires a strong argument for why you don’t deserve a conviction—along with strong defenses to any other evidence the prosecution has available.
You Can Also Be Convicted of an Implied Consent Violation if You Refused the Breathalyzer
Importantly, if you refused the breathalyzer during your traffic stop, fighting your DWI charge isn’t your only concern. In this scenario, there is also a very good chance that you are facing an additional charge for an implied consent violation.
Implied consent violations are also known as DWI refusals. Under New Jersey’s “implied consent” law, drivers are required to take the breathalyzer upon request during a DWI stop. As the law states:
“Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in [New Jersey] shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood . . . .”
As a result, if you refused the breathalyzer, you could be facing additional penalties—and you could be convicted of an implied consent violation even if you aren’t convicted of DWI. If this is your first offense, a DWI refusal conviction could result in thousands of dollars in fines, fees, surcharges, and 12 hours of mandatory alcohol education.
But, just like DWI charges, there are several potential defenses to DWI refusal charges under New Jersey law. Section 39:4-50.4a of the New Jersey Statutes states that “no conviction shall issue” unless the judge determines by a preponderance of the evidence that:
- “[T]he arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug, or marijuana or cannabis;”
- “[T]he person was placed under arrest, if appropriate;” and,
- [The person] refused to submit to the test upon request of the officer.”
All three of these present potential opportunities for defending against a DWI refusal charge. Depending on the facts of your case, your New Jersey DWI lawyer may be able to challenge the arresting officer’s determination of probable cause. Your lawyer may also be able to argue that you weren’t yet under arrest when the police asked you to take the breathalyzer. In many cases, the question of what constitutes a “refusal” can play a key role as well. For example, if you tried to blow into the breathalyzer but couldn’t register a reading, this may provide grounds for dismissal of your DWI refusal charge.
Making Informed Decisions After You’ve Refused the Breathalyzer in New Jersey
If you refused the breathalyzer and are now facing a DWI charge (and a DWI refusal charge), the key to protecting yourself is by making informed decisions. This means that you need an experienced New Jersey DWI lawyer on your side. While you can be convicted after refusing the breathalyzer, it will also be possible to avoid a conviction in many cases. With this in mind, to protect yourself from unnecessary consequences, you should:
1. Take Detailed Notes About Your DWI Stop and Arrest
In this type of situation, the details matter. As a result, any details you can remember could prove vital to your defense. To ensure that your New Jersey DWI lawyer has as much information as possible, you should write down everything you can remember from your traffic stop and arrest.
2. Make Sure You Know Your Court Date
After a DWI arrest in New Jersey, you need to make sure you know your court date. It will most likely be scheduled just days after your arrest. If you don’t make it to your arraignment, you could face yet another charge (and yet more penalties) for failure to appear.
3. Talk to a New Jersey DWI Lawyer Promptly
Ultimately, the key to making informed decisions about your case is getting advice from an experienced New Jersey DWI lawyer. Since your case will move quickly, it is important that you talk to a lawyer as soon as possible.
Discuss Your Case with a New Jersey DWI Lawyer in Confidence
Did you refuse the breathalyzer during a DWI stop in New Jersey? If so, we can help, and we encourage you to contact us promptly for more information. To discuss your options with an experienced New Jersey DWI lawyer in confidence, call us at 877-435-6371 or send us a message online today.
