Refusal Cases

NJ Refusal FAQ’s

1. Could you please provide an overview of New Jersey refusal laws?

New Jersey law requires every driver using the roadways in New Jersey to submit to a chemical breath test when requests. There are also 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 refusal 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.

2. What is the difference between a DWI and a refusal charge?

The primary difference between a DWI and a refusal case is that there is no jail time for a refusal case. The DWI Statute carries a possibility for jail time of up to 180 days. Meanwhile, in a refusal case there are no legal provisions for any jail time. More specifically, in addition to license revocations and fines, a conviction for a DWI provides for a potential jail term of thirty days for a first time offender; a two day to a ninety-day jail sentence for a second time offender; and a mandatory one hundred and eighty-day jail sentence for a third time offender. For a refusal case, there are no jail time provisions.

3. What does the term implied consent mean?

New Jersey law requires you to take a breath test if you are arrested for a DWI. New Jersey’s “implied consent” law provides that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your breath for the purpose of determining your blood alcohol content (BAC). The breath test must be taken at the time of your arrest. If you refuse to take a test, however, then the officer cannot force you to take one. You could be arrested for a DWI even if you are not driving. If you let another person drive your car and you know that person is drunk, then New Jersey law says that you, too, can be convicted of a DWI. The state has made this law to punish people who put drunk drivers on the road just the same as the drunk drivers themselves.

4. Under what circumstances can the police request that a defendant take a breath test?

The police must have reasonable grounds to request a breath test.
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 motor vehicle 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.

5. Can I refuse to take the breath test if I am asked to take it?

Once you are arrested, the police officer will request a breath test and should tell you your rights if you submit to a test as well as the penalties if you choose not to. If you submit to the test, then you can have a copy of the test results and you have the right to have an additional breath, blood, or urine tests taken by a medical professional of your choice. It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DWI.

6. What type of warnings must the police provide before I am requested to take a breath test?

Under New Jersey law, a police officer who requests a breath sample(s) of a defendant’s breath to determine his blood alcohol concentration must first advise him of his obligation to provide such samples. The form that must be read is called the “New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle.” This form is universally referred to as “Paragraph 36.” Once a defendant is stopped for a DWI, and if the police officer wants to give him for a breath test, then Paragraph 36 must be fully read to him. If a defendant refuses to provide a breath sample following an initial reading of the advisement, then the police officer will then issue a DWI and a refusal summons to the defendant.

7. What are the elements of a refusal case?

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

C. A refusal by the defendant to submit to a breath 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.

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

8. What constitutes consent to a breath test under New Jersey law?

Due to their circumstances, perceived legal problems and the 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.


9. What happens when the arresting officer asks the defendant whether he wants to submit a breath test and the defendant remains silent?

When the police officer asks the defendant whether he will submit to a breath test, in many cases the defendant will keep his mouth shut and keep quiet. 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 lacks 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).

10. How many breath samples must a defendant provide to the police officer?

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.

11. What are the consequences if a defendant provides a short sample(s) to the police officer?

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.

The key factor to remember in a short sample case is that the defendant appears to give his or her unqualified consent to submitting to the breath test, but by provide a short sample, the defendant conduct belies the consent. Many defendants play all types of games when they are asked to give a breath test. An illustrative case is State v. Geller, 348 N.J. Super. (Law Div. 2001). Here the defendant was given six opportunities to provide a breath sample. During five of these attempts, he failed to close his mouth around the mouthpiece of the breathalyzer and he did not provide a proper sample. On the sixth attempt, the breathalyzer’s green light came on thereby indicating an adequate breath sample. However, the police officer who conducted the test determined that the final sample was also inadequate. The court held that after providing five short samples, the sixth sample could be discounted as an attempt by the defendant to cure his initial short sample refusal. Under New Jersey law there is no option to cure a prior refusal.

12. What are the consequences if the police officer delays in giving a breath test to the defendant?

A defendant 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 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.

13. What are the legal consequences if a defendant gives a conditional refusal?

A defendant may attempt to place “conditions” upon his consent to provide a breath sample(s). In the typical case the defendant will consent to take a breath test only after being permitted to visit the restroom and/or make a phone call. A defendant can’t cannot attach any conditions to taking the breath test.

14. If the defendant becomes utterly confused after hearing Paragraph 36 can this be raised as a legitimate defense?

The information that is read as provided in Paragraph 36 is very confusing to say the least. Even lawyers who don’t practice in the area of DWI law can’t understand it. Also keep in mind that the Paragraph 36 is often read to a defendant late at night when he is extremely tired and just wants to go home. A defendant who is requested to submit to a breath test by the police sometimes become confused by all of the information that he is. As part of the arrest procedure, the police will often advise a drunken driving suspect of his or her Miranda rights. The Miranda warnings include a statement 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 obligation to submit to a breath test , only 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.

After a defendant hears both the Miranda warnings and Paragraph 36, he often becomes hopelessly confused and nervous. Thus, the vexing issue then arises; can a defendant raise a legitimate defense under these circumstances under the confusion doctrine? There simply is no clear case law to bolster a refusal defense based on the confusion doctrine.

15. Can the contradictory and the 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.

16. If a defendant is physically unable to provide breath samples can this be a bona fide defense?

A defendant 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 defendant’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 an injury to the DWI driver’s mouth, face, chest or lungs that would reasonably prevent the driver from providing a breath sample would probably excuse a refusal.

17. What if the defendant does not know the legal consequences of a breath test refusal?

Under New Jersey law, the police must read drivers arrested for DWI what is know as the Paragraph 36 before attempting to administer the Alcotest. Paragraph 36 or also referred to as the Standard Statement essentially informs drivers that taking the Alcotest in New Jersey is mandatory and that if the driver refuses to take the Alcotest the driver will be issued a summons for refusal to take the test. The police must also read the driver the basic penalties for a refusal in New Jersey.

Recent New Jersey case law has focused on a second set of warnings (in addition to the Standard Statement) that must be read to drivers arrested for DWI. This second set of warnings is known as the “Additional Statement.” The Additional Statement is to be given to drivers who either conditionally consents or ambiguously decline to provide a breath sample. In the Additional Statement drivers are warned that if the driver does not unconditionally agree to provide breath samples immediately the driver will be issued a separate summons charging the driver with refusing to submit to the taking of a breath sample. Failure by the police to read the Standard Statement or the Additional Statement (if the driver conditionally consents or ambiguously declines to provide a breath sample) will serve to invalidate the refusal conviction.

18. What if the police officer fails to read all of the provisions of Paragraph 36?

This is one of the best defenses to a refusal case. In many cases, the police officer is tired and he makes a careless mistake by failing to fully read Paragraph 36t. Police officers often get very busy and they often arrest DWI drivers late at night. In my years of experience, quite often there are many opportunities to contest that the provisions of Paragraph 36 were complied with. The failure of the police officer to read all of the provisions of Paragraph 36 to a defendant may constitute a defense to a refusal charge. In the case of State v. Duffy, 348 N.J. Super. 609 (App. Div. 2002), the Appellate Division held that the failure to inform the defendant his “under duress” answer would be construed as a refusal was a fatal defense to the State’s case.

Keep in mind that there are two parts to Paragraph 36. This statement is quite long, and it is a pain in the xxx for the police to read to the defendant. In some cases, the police officer fails to read the second part of Paragraph 36. There are two cases on the reading of the second part of Paragraph 36. In the case of State v. Spell, 196 N.J. 537 (2008), the New Jersey Supreme Court noted that the second part of Paragraph 36 is to be read along only if, after all other warnings have been provided, and the person being detained for DWI either conditionally consents or ambiguously declines to prove a breath sample.

In the recent case of State v. Schmidt, 206 N.J. 71 (2011), the police officer only read the first part of the standard statement to the defendant, who agreed to provide breath samples. However, after giving three samples, the police determined that the defendant was purposefully refusing to provide an adequate breath sample, and charged him with a refusal. The Supreme Court ruled that once that defendant agreed in an unambiguous manner that he did not voluntarily provide a breath sample, then a reading of the second paragraph became unnecessary. Thus, in a sense, the reading of the second part of the standard statement was not required.

19. What is the best defense(s) to a refusal case?

There are few defenses to a refusal case that could be used. 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). In my opinion the best defense is that the police officer did not comply with reading the entire Paragraph 36 to the defendant. This issue arises in more cases than you would believe.

20. Can a defendant cure a refusal if he changes his mind?

In the world of DWI the name of the game is for the police to issue as many DWI and refusal tickets as possible. Many police officers want to give the defendant a fair shot, and give the field tests in a fair manner and treat him fairly. However, on the flip side most police officers simply want to issue as many DWI and refusal tickets as possible. In many cases a defendant will refuse to consent to a breath test and then change his mind once he begins to sober up. A defendant who initially refused to consent to take a breath test sometimes change his mind. This many occur at any time after the initial refusal has occurred. An interesting issue is if the defendant changes his mind within a reasonable period of time, can the refusal be cured? In short, can the defendant be given a second chance. In the case of State v. Ginnetti, 232 N.J. 378 (Law. Div. 1989), the court found a defendant not guilty of the refusal. The defendant at first refused but changed his mind and agreed to take the test within a few minutes of his initial refusal.

The Ginetti case was overturned by the case of State v. Bernhardt, 245 N.J. Super. 210 (App. Div. 1991). Here, the court announced a “bright line” rule of law. Simply put, a defendant may not cure an initial refusal to take a breath test in New Jersey. The court reasoned that permitting a cure would hamper the state in the administration of its public policy of requiring the court to work in tandem with the Legislature to streamline the implementation of laws designed to rid the highways of drunk driver


21. What are the potential sentences for a refusal conviction?

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:


The penalties for refusing to take the initial breath test begin with a suspension of your license for seven months to one year. The fines range from $306 to $506 and $33 for court costs. There is also a $100 Drunk Driving Enforcement Fund surcharge payment at the time of sentencing. Additionally, the defendant is required to attend an alcohol education program, at the Intoxicated Driver Resource Center (IDRC). The defendant must pay the $100 fee to attend the IDRC. There is also an obligation to install the interlock device for a period ranging from six months to one year after the end of the defendant’s sentence.

There are also collateral consequences for a refusal a refusal. There are MVC surcharges in the amount of $1,000 for three years. The defendant will be assessed nine insurance eligibility points. Thereby increasing the costs of his insurance policy.


A defendant convicted of a second refusal offense will lose his driver’s license for two years. This is a mandatory sentence and there are no exceptions. The fins range for $506 to $106, and there are $33 for court costs. The defendant must pay the $100 drunker Driving Enforcement Fund surcharge. Finally, the defendant must attend the program at the Intoxicated Driver Resource Enter (IDRC). The defendant must pay the $100 per diem fee to attend this program. The defendant will have to spend two days at the IDRC.

A second offender for refusal is required to install an ignition interlock device on his vehicle. The court could require the defendant to have the interlock device for one to three years. There are also collateral consequences as well. There are $1,000 per year of MVS surcharge for three years. The defendant will be assess nine insurance eligibility points.


There is a 10-year loss of license, $1006 fine, $33 court costs, and the $100 Drunk Driving Enforcement Fund surcharge. The defendant must complete the IDRC. He must pay $100 per diem fee to the program. The defendant will be required to install an interlock device for one to three years. The collateral consequences are $1,000 of surcharges for three years. The defendant is assessed nice insurance eligibility pints.


22. What are some of the important considerations to analyze in any refusal case?

I want to emphasize that it is extremely hard to beat a refusal case at the Municipal Court level. The best defense is if the police officer failed to comply with fully  reading Paragraph 36, or he  violated the provisions of the Marquez case. However, the Municipal Courts are not designed to try many cases. If you raise legitimate issues that are backed up by valid law and an expert’s report then you may be able to convince the prosecutor to downgrade a second tier DWI to a first tier DWI. Moreover, the prosecutor in certain cases can be convinced to merge or drop a companion refusal case if the defendant pleads out to the first tier DWI. There are no guarantees in this process. However, you have to build a case if you want to “be in the game.”

There are many factors to assess your chances of beating a refusal case. These factors include;

A. If the person charged was pulled over by the police, what were the circumstances leading up to the driver being stopped, and was it lawful for the police officer to stop the driver? For example, if the driver was charged with offenses like: speeding, careless driving, reckless driving, failure to maintain lane, failure to signal, improper passing, failure to signal, leaving the scene of an accident, or tailgating; did the police have sufficient reason to stop the defendant?

B. If the defendant charged with DWI was not driving when he was stopped by the police, does the evidence indicate that he was “operating” the motor vehicle?

C. After the police first stopped the defendant did the police officer have adequate reason to detain and evaluate the defendant before the arrest?

D. Did the police officer administer field sobriety tests before the arrest? If not, what impact would that have on the arrest? If field sobriety tests were administered, were they administered and evaluated properly?

E. Was the motor vehicle stop and the events at the roadside videotaped? If so, does the tape disclose useful evidence?

F. Would expert testimony concerning the police officer’s evaluation of the defendant at the roadside before the arrest be helpful in defending the case?

G. After the DWI arrest and before the request to take the test, was the defendant given the required warning concerning the consequence of refusing to take the test?

H. If an Alcotest test was administered and if the driver attempted to give a breath sample but was nevertheless charged with refusal, was the unit in proper working order and did a properly certified operator administer the test in the approved manner?

I. If an Alcotest test was administered and if the driver attempted to give a breath sample but was nevertheless charged with refusal, was the driver given the proper instructions concerning how to perform the test?

J. If the driver attempted to give a breath sample but was nevertheless charged with a refusal, was the driver suffering from any impairment that might have affected his or her performance?

K. If the driver is not fluent in English, was he informed of the consequences of refusing to provide a breath sample and the proper way to perform the test in a language they understood?

L. Were the events at headquarters and the administration of the Alcotest videotaped? If so, does the tape disclose useful evidence?