New Jersey DWI refusal is a complex charge to defend, but it is very possible under certain circumstances to win a refusal charge.
First, there has to have been a lawful stop of your vehicle, and a lawful arrest. If the officer did not properly stop your car or improperly arrested you, anything that follows after the illegal stop or illegal arrest must be suppressed or excluded from evidence. There must be a reasonable suspicion by the officer that the driver is under the influence of alcohol or drugs.
Once arrested, the officer must advise the driver of the current Implied Consent rules and law. This is done by reading a somewhat lengthy eleven paragraph form that stresses the requirement that the driver submit to giving samples of his or her breath when requested by the officer.
Implied Consent means that when the driver was issued a license and granted the privilege of driving a vehicle, the driver automatically gave consent to the testing of his or her breath when requested by an officer who has reasonable suspicion to believe that the driver is under the influence of alcohol.
New Jersey’s implied consent law mandates that any driver arrested on suspicion of DUI / DWI must submit to a chemical test to determine blood alcohol content (BAC) or the presence of drugs. Refusing to submit to a chemical test following a valid arrest can bring serious repercussions. Anything other than agreeing to submit to the testing has been determined by the courts to equal a refusal.
This applies only to breath testing cases in New Jersey, and not blood or urine testing. There is no law in New Jersey that requires submission to blood or urine testing. There is also no law that requires submission to the field sobriety exercises that the driver may have performed road-side or even in the police station.
Because the consequences of a refusal are so severe, anyone facing this allegation following a driving under the influence arrest should consult with a NewJersey attorney who is experienced in DUI / DWI defense. A skilled New Jersey DWI defense lawyer will review each case individually to determine whether a refusal charge can be dismissed.
A motorist found to have refused a legitimate request for a New Jersey DWI breath test will lose his or her driver’s license for seven to twelve months on a first offense. The suspension will remain in place even if the driver is ultimately found not guilty of a NJ DWI / DUI. A second NJ DWI conviction results in a two year license suspension, and a third or greater NJ DWI conviction has a ten year license suspension.
There are also significant fines and assessments for refusing to take a breath test in New Jersey. Fines range from $300 to $2,000 depending on whether it is a first, second, or greater conviction. Surcharges are levied by the New Jersey Motor Vehicle Commission (MVC) that range from $3,000 to $4,500, and insurance companies charge additional and separate surcharges.
The refusal laws recently changed, and the results of a refusal conviction can cause significant future repercussions. A refusal conviction is now counted as a prior conviction for any future DWI / DUI conviction. Prior to 2010 this was not the case, and refusal charges were believed to be better than a DWI / DUI conviction. Now that they are treated essentially the same as a DWI / DUI conviction, this is not the case. One of the only benefits of a refusal conviction over a DWI / DUI conviction is that there is no jail associated with a refusal conviction.
In addition, a chemical test refusal can be used by a prosecutor as evidence of consciousness of guilt. In other words, the prosecutor can argue that the driver refused the test because he or she knew that it would be failed.
Many drivers arrested for New Jersey DWI / DUI or driving under the influence of drugs mistakenly believe that refusing a chemical test is in their best interests, but most attorneys would advise their clients to consent. Because a driver can be punished for refusing a test even if he or she is acquitted of drunk driving, it’s better to submit to the test.
Many drivers fear that a chemical test that shows a BAC of .08 percent or greater or the presence of drugs means a slam-dunk conviction, but that’s simply not true. The good news is that chemical test results can be successfully challenged. There are many effective challenges available to blood, breath or urine tests that can create reasonable doubt in a driver’s guilt.
Ultimately, it’s better to submit to a chemical test after a lawful New Jersey DWI / DUI arrest, but not everyone does. A New Jersey DWI lawyer who is well-versed in refusal cases will thoroughly examine the circumstances surrounding the driver’s chemical test refusal and develop an aggressive defense strategy designed to minimize negative consequences.
If you are an out of state licensed driver, there are many issues to explore regarding the combination of a refusal and a New Jersey DWI charge.
To discuss any issues regarding a refusal or New Jersey DWI / DUI charge, please call Levow DWI Law at 877-593-1717.