Refusing to Submit to a Breath Test Explained

According to 39:4-50.2:

"Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14)."

The Synopsis:

In sum, anybody who operates a motor vehicle in the state of New Jersey must give a sample of his breath if there are reasonable grounds to believe that a person was operating a motor vehicle while intoxicated. If you refuse to give a sample of your breath, you will be fined and receive an automatic license suspension of 7 months for refusing to submit to a chemical BAC test. For a second offense refusal, the license suspension period is 2 years. For a third offense refusal, the license suspension period is 10 years. These penalties can be in addition to being charged with a DWI. Refusing to provide a breath sample is an entirely separate offense.

Before any breath sample is taken, the police must read what is known as a "Standard Statement" that explains the requirement of providing breath samples as well as the consequences if one refuses to give a sample. This statement must also be read in the language that the person is familiar with. It is important to note that individuals charged with DWI do NOT have the right to have an attorney before and during the administration of a breath test. However, a person may indeed obtain his own independent breath, blood or urine sample subsequent to the one provided to the police.

Although tough, there are defenses to refusing to provide breath samples. As an example, I have seen cases where there were medical and physical conditions that precluded a person from giving adequate and acceptable breath samples.