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Can the Police Force You to Take a Breathalyzer in New Jersey?

January 18, 2021 | Posted In Drunk Driving |

Under New Jersey’s “implied consent” law, you have a legal obligation to submit to a breath test when you get pulled over for DUI. But, can the police force you to take a breathalyzer? Our New Jersey DUI defense lawyers explain.

The New Jersey Police Cannot Force You to Take a Breathalyzer

Despite New Jersey’s implied consent law, the police cannot force you to take a breathalyzer. If you refuse a breath test, the police cannot forcibly test your blood alcohol concentration (BAC)—whether through a breath test or by taking a blood sample. It is important to note, however, that under certain circumstances, the police can obtain a warrant for your blood.

However, this does not mean that the police are prohibited from trying to talk you into taking the breathalyzer. In New Jersey, the police are actually required to explain New Jersey’s implied consent law during a DUI traffic stop, and they can go further in encouraging you to provide a breath sample. If you take the breathalyzer – even based on a mistaken belief that you are legally required to do so – then your breath sample will generally be admissible in the New Jersey courts.

Refusing a Breath Test Can Have Serious Consequences

While you can refuse to take a breathalyzer during a DUI stop in New Jersey, doing so can have serious consequences. This is known as a “DUI refusal,” and it can lead to penalties regardless of whether or not you are guilty of DUI. For a first-time offense, the penalties for a DUI refusal include:

  • Driver’s license suspension
  • Fines and fees
  • Three-year auto insurance surcharge
  • Mandatory education at an Intoxicated Driving Resource Center (IDRC)

You May Have Defenses to Your DUI Refusal

If you refuse a breathalyzer test during a DUI traffic stop and are charged with a DUI refusal, it will be important for you to fight this charge by all means available (in addition to defending against your DUI). Depending upon the circumstances surrounding your refusal, some possible defenses may include:

  • Failure to Read Your Rights – Before asking you to take a breathalyzer, the police are required to read your rights under New Jersey’s implied consent law. If your arresting officer failed to do so (and if you can prove it, for example, with dash camera or body camera footage), then you may be able to avoid the penalties listed above.
  • Lack of Reasonable Suspicion or Probable Cause – If the police stopped you without reasonable suspicion of DUI or lacked probable cause to make a DUI arrest, then you were not required to submit to a breath test.
  • Inability to Provide a Breath Sample – If you were incapable of providing a breath sample due to medical reasons, this could provide a defense to your DUI refusal as well.

Speak with a New Jersey DUI Defense Lawyer in Confidence

If you are facing a DUI and/or DUI refusal charge and would like to know more about your legal rights under New Jersey law, we encourage you to contact us promptly. To speak with one of our experienced New Jersey DUI defense lawyers in confidence, call 877-435-6371 or tell us how we can reach you online now.

Over 20 attorneys at HCK have extensive experience in DUI defense as they were former assistant prosecutors and/or police officers for a combined total of over 600 years of law enforcement experience. You can find out more about them on our site, and you can call Managing Partner Ron Helmer on his cell phone at 609 685-0665.

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Helmer, Conley & Kasselman, P.A.

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