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

March 15, 2023 | 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.

Understanding New Jersey’s Implied Consent Law

To understand whether the police can force you to take a breathalyzer in New Jersey, you first need to understand the state’s implied consent law. Under this law, by driving on New Jersey’s public roads:

“[You] shall be deemed to have given [your] consent to the taking of samples of [your] breath for the purpose of making chemical tests to determine the content of alcohol in [your] blood.”

In other words, simply by the act of driving, you implicitly agree to take a breath test if the police pull you over on suspicion of DUI. The act of driving constitutes your “implied consent” to be tested for alcohol intoxication.

However, your implied consent in New Jersey is not absolute. As the law goes on to state, you are only required to submit to a breath test if “the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that [you have] been operating a motor vehicle in violation of [New Jersey’s DUI law].” This means that if the police either (i) do not have reasonable grounds to believe that you were driving drunk or (ii) do not comply with the procedural requirements of New Jersey’s implied consent law, then you cannot be penalized for refusing the breathalyzer.

It is also important to understand what constitutes a refusal. While the police may want you to take the breathalyzer so they can record your BAC and book you for DUI, proof of a BAC is not required for a DUI arrest and conviction. Additionally, an implied consent violation is a separate offense that carries penalties on top of the penalties for DUI, so the police are often happy to allow suspects to refuse and then issue citations with multiple charges. For example, it is possible to be charged with an implied consent violation in New Jersey based on:

  • Refusing to get out of the car, requesting to go to the bathroom or doing anything else that delays the administration of the breath test
  • Refusing to provide a second breath sample after providing a first one
  • Not blowing hard enough into the breathalyzer device to register a BAC reading
  • Not blowing long enough into the breathalyzer device to register a BAC reading
  • Initially refusing to provide a breath sample and then later offering to take the breathalyzer
  • Making untrue statements to the arresting officer in an attempt to avoid taking the breath test (i.e., saying you have a health condition that makes it difficult to breathe heavily)
  • Doing anything else that interferes with the arresting officer’s ability to administer the breathalyzer at the time of the officer’s initial request

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.
  • Failure to Follow the Implied Consent Law’s Procedural Requirements – In addition to reading your rights before asking you to take the breathalyzer, the police must meet various other procedural requirements as well. If your arresting officer did not follow all of the requirements for conducting a valid breath test, then you may not have been required to provide a sample. 

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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