Refusal Cases

NJ Breath Test Refusal

New Jersey law requires every driver using the roadways in New Jersey to submit to a chemical breath test when requests. NJ law imposes harsh civil penalties, fines, motor vehicle surcharges, and a long suspension of driving privileges if a driver refuses to take a breath test.

New Jersey courts has an implied consent law, and it requires drivers to take a breath test if they are pulled over on suspicion of DWI. The New Jersey Supreme Court has interpreted the public policy of the implied consent statute to be more protective than punitive. Its primary purpose is not to punish the driver, but to protect the motoring public by removing the offending driver from the highways with reasonable dispatch.

The implementation of New Jersey’s public policy by the courts and the efforts by the police to enforce the implied consent law create numerous challenges for both the prosecutors and defense counsel who must handle refusal cases. Given the numerous potential sentencing enhancements associated with the statute, refusal cases are frequently hotly contested in court. Indeed, the act of refusing to submit to a breath test may be used by the court to infer guilt on the related drunken driving charge.

Yet, over and above these issues, there are other, more basic legal problems that must be confronted in every refusal case. Did the actions of the defendant actually constitute a refusal? Was the defendant legally required to take a breath test? Can a defendant who initially refuses change his or her mind and voluntarily submit to a breath test? Can an acquittal for refusal to submit to a chemical test be appealed by the State? These and many other topics are explored in the sections that follow.



In general, there are five elements in a refusal that must be proved by the State by a preponderance of the evidence. These include;

a. That the arresting police officer had probable cause to believe that the defendant operated a motor vehicle while under the influence of alcohol;

b. An arrest of the defendant;

c. A refusal by the defendant to submit to a breathalyzer test;

d. That the request for the defendant to take the test was made by a police officer who had reasonable grounds to believe that defendant had been operated a motor vehicle in violation of the DWI laws; and

e. The attempt to administer the breath test was conducted lawfully.



A. Probable cause to Believe that the DWI Driver Operated While Under the Influence.

The police officer must have probable cause to arrest the driver for a DWI charge. The cop can’t just pull over the car, and go “fishing” for DWI drivers. A probable cause determination is based upon the arresting officers’ perceptions, training, experience, and consideration of the totality of the circumstances.

B. Arrest of the Defendant

The refusal charge also requires that the DWI driver be arrested. The arrest of the DWI driver must be supported by probable cause.

C. Refusal to Submit to the Breath Test

Due to their circumstances, perceived legal problems and general state of intoxication, many drunk driving defendants will engage in conduct which can constitute a refusal to submit to a breath test. The law is well settled that anything Substantially short of an unqualified, unequivocal consent to a police officer’s request for a breath test constitutes a refusal to do.


i. Silence

When the arresting officer asks the defendant whether he or she will submit to a breath test, the defendant remains silent. This may be due to the defendant’s subjective, good faith belief that he or she has a right to remain silent. However, the defendant’s subjective intent is irrelevant in, determining whether the defendant’s responses or lack of responses constitute a refusal to, take the test. Silence by the defendant is sufficient evidence to constitute a refusal to submit to a breath test. This bright line rule, was adopted by the Appellate Division of Superior Court in State v. Sherwin, 236 N.J. Super. 510 (App. Div. 1989)

ii. Insufficient Number of Breath Samples

The refusal statute mandates consent to the taking of samples, of a defendant’s breath. However, how many samples must a defendant provide. Normally, the police will require a minimum of two samples, in order to be assured of accurate, consistent blood alcohol results. In the case State v. White, 253 N.J. Super. 490 (Law. Div. 1991), the court held that a DWI driver must provide at least two samples of their breath and the failure to do so constitutes a refusal.

iii. Short Samples

A short sample occurs when the defendant either pretends to blow into the breathalyzer or does not provide a sufficient amount of breath to fill the chamber. These so-called short samples will not result in a valid reading from the breathalyzer and are of no value. Thus, a short sample is no sample at all. For this reason, a short sample can constitute sufficient evidence to satisfy the refusal element.

iv. Delay in the Administration of the Breath Test

Defendants will sometimes seek to delay the administration of the breathalyzer test. Frequently, this is done in order to attempt to speak to an attorney or some other person for legal advice prior to taking the breath test. Defendants have no right to delay the administration of a breathalyzer test. Due to the evanescent nature of evidence of alcohol intoxication, it is vital that the police obtain the breath samples from the defendant without undue delay. Indeed, the samples, must be obtained within a reasonable period of time after either operation of a motor vehicle or arrest. Any delay initiated by the defendant may frustrate police efforts to obtain reliable evidence of the defendant’s blood alcohol concentration within a reasonable period of time. For these reasons, a delay by the DWI driver for any reason to take the breath test can constitute sufficient evidence to convict for refusal.

v. Conditional Refusals

A DWI driver may attempt to place “conditions” upon their consent to provide breath samples. In the typical case; the defendant will consent to take a breath test only after being permitted to cause the restroom or make a phone call. A DWI driver can not attach any conditions to taking the breath test.

vi. The Confusion Doctrine

The defendants who are requested to submit to breath tests by the police sometimes become confused by the information they are provided by the police. As part of the arrest procedure, the police will often advise a drunken driving suspect of his or her Miranda rights. These include a warning that the defendant has the right to remain silent and to speak to an attorney before any questioning by the police. However, the warnings given to a defendant as to his or her obligation to submit to a breathalyzer test inform the defendant that there is no right to refuse to provide the police with a breath sample or to speak to an attorney before providing a breath sample to the police.

Can the contradictory and, confusing nature of these two advisements to a defendant cause such confusion in the defendant’s mind that he or she can be legally justified in refusing to take a breathalyzer test?

The New Jersey Supreme Court recognized that, as a practical matter, it is difficult to explain to a suspected intoxicated driver under arrest at the police station house the subtle legal distinctions that make it constitutionally permissible to extract a person’s blood or breath but not his or her words. The Supreme Court has even suggested changes to the language used to advise defendants of their obligations under the implied consent law that will eliminate some of the potential for confusion. See, State v. Leavitt, 107 N.J. 534 (1987).

Thus, while confusion is not a recognized defense to a refusal charge, there has been no bright line established by the Supreme Court which would prevent a defendant from raising this issue. A defendant who wishes to assert the “confusion doctrine” as a defense to a refusal charge will bear the burden of persuasion if he or she wishes to establish a confusion claim.

A DWI driver who cannot prove that he or she was confused by the warnings will be found to have refused to submit to a breath test.

vii. Physical Incapacity

A DWI driver can argue at court that they were physically incapable of giving a breath test. This type of strategy can work if the DWI driver has breathing problems such as asthma, or if they were shaken up by the accident. Moreover, a driver’s incapacity to take the breath test may be due to a high level of intoxication, illness, or fatigue.

Based on the realities of the DWI case, that a injury to the DWI driver’s mouth, face, chest or lungs that would reasonable prevent the driver from providing a breath sample would probably excuse a refusal.



The police officer who requests that the DWI take a breath test must also have “reasonable grounds” to believe that the driver was also drunk. Basically, the police officer must have had probable cause to stop the vehicle to conduct an inquiry for a DWI. Remember, a police officer can’t just pull over a vehicle and request that the driver take a breath test. The vehicle must be stopped for committing some type of motor vehicle violation that would satisfy the probable cause standard. The car must be speeding, weaving, or a tail-light must be out. Random stops of vehicles in most municipal courts do not satisfy the probable cause standard.



Basically, the police have to read DMV Standard Statement 36 to the DWI driver. If they don’t this may be a great loophole for a DWI driver in an “open minded” court.

Breath test refusal is a separate offense for which the court imposes separate punishments in addition to those for drunk driving.

Elements: The State must prove each of these elements by a preponderance of the evidence (i.e., more likely than not) before the court can convict you of breath test refusal:

A. The arresting officer had probable cause to believe that you were driving or in actual physical control of a motor vehicle on the public highways or quasi-public areas of this state while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana.

B. You were arrested for drunk driving.

C. The police officer asked you to submit to a breath test.

D. You refused to submit.



There are few defenses to breath test refusal. They include confusion about your legal obligation to submit a breath sample (not confusion caused by intoxication) and a physical inability to give sufficient breath samples due to certain medical conditions (e.g., trauma, emphysema, asthma).



Refusing to provide samples of your breath is a separate offense (N.J.S.A. 39:4-50.4(a)), which subjects a driver to the penalties as follows:

Seven month loss of license, $250 – $500 fine, $1,000 yearly surcharge for three years, and 2 days in the Intoxicated Driver’s Resource Center.

Two years loss of license, $250-$500 fine, $1,000 yearly surcharge for three years, and 2 days in the Intoxicated Driver’s Resource Center.

There is a 10 year loss of license, $250-$500 fine, $1,000 yearly surcharge for three years, and 2 days in the Intoxicated Driver’s Resource Center.

The penalties are in addition to and consecutive to any penalties imposed for the underlying drunk driving offense. There is also a $100 a year surcharge to be deposited in a drunk driving enforcement. Moreover, a driver is also subject to the requirements set by the Intoxicated Driving Program/Intoxicated Driver Resource Center.