I am often asked by clients and friends if they should take a breath test if arrested on suspicion of DWI. My answer is always the same: TAKE THE TEST!
Here’s why. When someone declines or refuses to give a breath sample when arrested for DWI in New Jersey, the punishment may be greater than if you actually took the breath test. Also, it is much easier to defend a case where someone gives a breath sample than it is for someone who refuses to give a breath sample.
In the State of New Jersey if convicted of a first offense for refusing to give a breath sample in violation of N.J.S.A. 39:4-50.4a the penalties are:
- 7-12 month loss of driver’s license
- $250-$500 fines
- Up to 48hrs in the Intoxicated Drivers Resource Center
- A $1,000 surcharge each year for 3 years.
Many people in New Jersey are under the misconception that it is better to refuse to give a sample of your breath. The fact is that there are fewer defenses to a “refusal” than there are to the breath sample results. In order for you to be convicted of a refusal the state must prove the following:
- That police had probable cause to believe you were driving while under the influence of alcohol;
- That they asked you to give a sample of your breath and informed you of the consequences of not giving a breath sample and;
- That you did not provide a sample of your breath.
Many people believe they will be asked to blow into a portable breath device on the side of the road. That is not the case in New Jersey. When you are arrested on suspicion of DWI in New Jersey, you are transported to a local police Department where you will be read what is known as the N.J. Attorney General’s Standard Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.2(e)) and told you must blow into an Alcotest machine.
The N.J. Attorney General’s Standard Statement explains that you must give a sample of your breath and you do not have a right to have an attorney present for it. This is often confusing to people because when police inform you of your Miranda rights, you are told you can have a lawyer present before any questioning. (This is another topic which will be covered in a separate blog).
If someone suspected of driving under the influence of alcohol either flat out refuses to give a breath sample; stays silent and does not give a sample; repeatedly asks for advice from the police; only agrees to give a sample if their lawyer is present; or agrees to give a sample but then does not blow hard enough into the Alcotest machine, all of those examples will be considered a Refusal. People are often shocked to learn that they will lose their license for 7 months upon conviction for refusal.
Although there are some defenses to a refusal charge and I have successfully defended refusal cases, it is much easier from a defense perspective to fight a DWI when someone gives a breath sample. That is because there are strict guidelines police must follow when administering the breath test, such as making sure the subject’s mouth is clear, making sure all cell phones and portable radios are removed from the room and observing an individual for 20 minutes before he or she gives a breath sample. If police fail to adhere to the strict procedural guidelines, or if the machine used was not calibrated properly, the breath results may not be admissible in evidence.
Therefore, I tell my clients it is better to give a breath sample, even if you think you will be above the legal limit, because we will have a better chance of defending it in court.