A driver in New Jersey who refuses to take an Alcotest will receive a Summons for this refusal, and a Summons for Driving While Intoxicated.  Another Summons for a driving violation that identifies the probable cause to stop the driver will also be issued.

Any person who operates a motor vehicle in New Jersey is 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 the officer has reasonable grounds to believe that such person has been operating a motor vehicle while under the influence. No chemical test is forcibly taken against the physical resistance of the driver.  The officer must inform the arrested person of the consequences of the refusal.

There is revocation of the driver’s license for a first offense for a period of seven months to one year.  A second offense carries a two year revocation; a third, ten years.  There are also fines, surcharges, and other penalties. The officer must have probable cause to believe the person was driving while under the influence of alcohol, a narcotic, a hallucinogenic, habit-producing drug, or marijuana.  In drug cases, including prescription medications, a urine sample is requested or blood tests are done under certain conditions, such as an injured defendant.

The defense of a refusal requires a basis to assert, with proofs, that the driver could not perform the Alcotest, did not understand the instructions, or was not informed of the consequences. Not only is there a written statement for the defendant to read; the officer must repeat the consequences of the refusal.  Inability to perform the test usually requires expert testimony.  For example, if a person does not have the vital capacity to blow adequately this can be shown through vital capacity testing at a medical facility, a doctor’s report based on the test results, and the expert’s testimony at trial.  An individual might have a history of asthma, emphysema, a neurological condition, or be a woman over 60 years of age for whom the State will accept a slightly lower breath sample.  It is the defendant’s burden to prove these defenses.

If the refusal charge can be overcome, there will still be the Driving While Intoxicated charge.  Simply because there is no BAC reading, a driver can be convicted based upon the police officer’s observations.  The officer must testify as to why he stopped the defendant.  There may be police videos to show failure to maintain a lane, speeding, an accident, or erratic driving.  The officer will testify as to what happened when he then stopped the defendant.  He will indicate whether the driver smelled of alcohol, how he looked, if he was able to produce his driver’s license and insurance card, whether the driver’s speech was slurred, the condition of his clothing, and statements made by the driver. If the officer sees indications of being under the influence of alcohol, he will then administer field tests.  He will check horizontal gaze nystagmus, one leg stand, counting tests, balance tests.  The officer uses the tests to determine whether he has probable cause to arrest and then require an Alcotest to establish the BAC. Failure to perform the field tests may be the result of a neurological disorder or injuries affecting balance. An expert examination, report, and testimony will be required to prove this.

The refusal to take an Alcotest will not result in escape from a Driving While Intoxicated conviction. If the officer’s observations demonstrate to the court beyond a reasonable doubt that the defendant was driving while intoxicated, a conviction will occur.

Experienced counsel is needed to evaluate and establish your defenses.

For more information and representation on defenses for a DWI and refusal charges, contact Helfand & Associates at 973-539-1000 for a telephone consultation.