Can I refuse a breathalyzer test in New Jersey?

When you are pulled over after perhaps one too many drinks and asked the take a breathalyzer test, your initial instinct might be to refuse, so there’s less evidence against you. However, refusing a breathalyzer in New Jersey may only worsen your situation.

Can I refuse a breathalyzer?

Technically, yes, you can refuse the test. However, this may not be in your best interest.

New Jersey has “implied consent” laws, which were in the fine print in your driver’s license application. By getting behind the wheel, you have legally given consent to law enforcement to test you if they have reason to believe you were driving while intoxicated.

By refusing the test, whether you’re convicted of a DUI or not, you face a license suspension between seven months and one year. You will also face a fine of $300-500 and two days in an Intoxicated Driver Resource Center. If this is the second or third time you have refused a breathalyzer, the penalties increase dramatically.

If you are eventually convicted of a DUI, additional penalties are lumped on top of these.

Be aware that non-cooperation is considered a refusal, including remaining silent when asked to take the test, giving a weak sample and stalling for time. Any of these actions, or clear refusal, will be used as evidence that you were intoxicated and avoiding the test to hide your intoxication.

But aren’t breathalyzer tests inaccurate?

It’s possible to argue that the breathalyzer device had not been calibrated or that the test was administered incorrectly.

For example, alcohol residue in the mouth can skew the breathalyzer results. Officers are supposed to wait and observe you for 20 minutes before administering the test to ensure you have not consumed alcohol immediately before taking the test.

Other breathalyzer complications

Officers must read an 11-paragraph statement to drivers explaining the implied consent law and what will happen if they refuse the breathalyzer. If this statement is not read, the breathalyzer refusal charge may be thrown out – though you still face possible DUI charges.

The precursor to a breathalyzer is a field sobriety test – stand on one leg, finger-to-nose, and so forth. These tests are notoriously unreliable when not conducted under “ideal circumstances,” which is rare.

Unlike the breathalyzer, you can refuse a field sobriety test without penalty in New Jersey, though again, the breathalyzer test may soon follow anyway. If you are 65 years old or older or more than 50 pounds overweight, you should not be asked to perform a field sobriety test.

If you are charged with refusing a breathalyzer test or charged with a DUI, contact an attorney to review your options.