Refusal to take Breath Test
If someone is convicted for the first time of Refusing to Provide a Breath Sample (39:4-50.4a) the license suspension is reduced from the current 7-12 months to a period of 90 days. That person is required to install the IID during the 90 day suspension and for six months to one year following the suspension.
Defenses to a Refusal to take a Breath Test
Contrary to popular belief there are many defenses to refusal to take a breath test.
Private Property - If you were charged with operating a motor vehicle entirely on private property. Police have no right to force you to take a breath test if you were operating a motor vehicle entirely on private property.
Wrong or no Reading of the Breath Test Refusal Penalties - New Jersey law requires that police advise of the New Jersey informed consent laws prior to asking you to take a breath test. In addition if you tell the police that you do not want to take a breath test then the police are required to read you a “second paragraph” which reiterates your obligations and penalties. Failure of the police to read these rights and penalties voids any refusal charge. Often police read these rights however these rights may not be the most up to date version of the rights. Similarly police are required to read you these rights (provided by audio recording) in a language that you actually understand. Failure to do so will void any refusal charge.
Police did not give you Enough Tries- Frequently the police officer operating the Alcotest will lack adequate training and charge you with refusal because the officer actually has no idea what they are doing. The Alcotest requires one continuous deep breath until the officer tells you to stop blowing. The Officer is supposed to advise you of this and the officer is supposed to watch the digital display to ensure that the proper number of asterisks (*) appears on the screen indicating that you have provided a large enough sample. If the officer does not give you the proper instruction you will not know what to do and police will charge you with refusing when it was their fault. In addition the Alcotest allows for a maximum of eleven (11) attempts before the machine will declare a refusal Often the police, will simply believe you are not blowing hard enough and press “abort” on the Alcotest instead of allowing you to make the 11 attempts.
False Bowing Refusal - Often police think you are feigning a breath sample by allowing air to escape form the sides of your mouth instead of blowing onto the machine. Poorly trained officers may believe this is happening without realizing that the asterisk on the digital display will verify if a person is blowing into the machine or not. An Alcotest requires a person (most people with the exception of females over 65 years old) to provide 1.5 liters of air for a single breath sample in order for the machine to produce a reading, you must give at leaset two such samples. Frequently the Alcotest print out will evidence that a person was not refusing at all. For example it may show that the person was blowing 1.4 liters or 1.2 liters. This is obviously not a person refusing to provide a sample. Rather this is usually the product of a poorly trained Alcotest operator not knowing how to watch the asterisks on the display to tell you to keep blowing or the result of a lung or respiratory issue.
Respiratory Issue - prior to conducting standardized field sobriety test (SFST) the police are required to ask you if you have any medical conditions which may effect the test. On the contrary, police are not told to ask you if you have a medical condition which may effect your ability to provide an adequate breath sample. According to the United States Office of Disease Prevention and Health Promotion, “Currently more than 25 million people in the United States have asthma. Approximately 14.8 million adults have been diagnosed with COPD, and approximately 12 million people have not yet been diagnosed.” If you have such a condition, it is important that you bring this to our attention so that we can use this as evidence to defeat the refusal charge.