Refusing the Breath Test in New Jersey

In New Jersey, refusing to give breath samples after a lawful arrest for DWI is a separate offense under N.J.S.A. 39:4-50.4a. It is tried in municipal court, the State has to prove it beyond a reasonable doubt, and a conviction brings license forfeiture until an ignition interlock device is installed, a statutory interlock period, fines, the Intoxicated Driver Resource Center and insurance surcharges. You can be convicted of refusal even if you are found not guilty of DWI.

Why is refusing the breath test an offense?

New Jersey's implied consent law, N.J.S.A. 39:4-50.2, treats everyone who drives on the state's roads as having agreed in advance to give breath samples if they are arrested for DWI. The refusal statute is how that agreement is enforced. Without it, declining the test would simply deprive the State of evidence; with it, declining becomes its own violation with its own penalties.

Implied consent covers breath samples. It does not make you agree to a blood test, which generally requires your consent or a warrant.

What does the State have to prove?

A refusal conviction requires more than an officer's note that you said no. The State must prove each of these beyond a reasonable doubt:

• The officer had probable cause to believe you were driving while intoxicated.
• You were arrested for DWI.
• The officer read you the standard statement that New Jersey uses to explain the consequences of refusing.
• You refused to give breath samples.

The standard statement matters. It tells you that you are required to give samples, that you have no right to have a lawyer or anyone else present for the test, and what refusing can cost. It must be conveyed in a language you speak or understand (State v. Marquez, 2010). Whether the statement was read, read fully, and understood is often visible on the station video.

What counts as a refusal?

Many people charged with refusal do not think they refused anything. In practice, the standard statement makes clear that anything short of an unconditional yes can be treated as a refusal. That can include:

• Saying no, or saying nothing.
• Agreeing only on a condition, such as first speaking to a lawyer, a family member or a supervisor.
• Giving an answer the officer reasonably understands as no.
• Failing to provide adequate breath samples.

There is no right in New Jersey to speak to a lawyer before deciding whether to give breath samples. People often ask for one at this moment, and that request, if it takes the place of a clear yes, can be treated as a refusal.

What are the penalties for refusal?

Under the law in effect for offenses on or after December 1, 2019, a first refusal conviction generally means:

• License forfeiture until an ignition interlock device is installed.
• An ignition interlock for a statutory period after that.
• Fines and court costs.
• Attendance at the Intoxicated Driver Resource Center.
• Motor Vehicle Commission insurance surcharges for three years.

A refusal connected to a school zone or school crossing carries enhanced penalties, and repeat refusals are punished more severely. How earlier DWI and refusal convictions count against each other for repeat-offender sentencing is technical, so get advice on your own record before assuming how a prior will be treated.

How do the refusal and DWI charges fit together?

Most refusal charges come with a DWI charge from the same night, and the two are usually heard together in the municipal court for the town where you were stopped. They are still separate offenses. The judge returns a separate decision on each, and any combination of outcomes is possible.

The fact that you refused can generally be offered as evidence in the DWI case as well. At the same time, with no breath reading, the State has to prove the DWI by observation: the driving, your behavior, field sobriety tests and the officer's account. That evidence deserves the same close review as a breath result. Our guide to DWI defense in New Jersey explains how those cases are built and challenged.

None of this is advice to refuse. Refusal carries its own penalties, and the decision is one made at the roadside or the station with no lawyer present. This page is about what happens once the charge has been written.

How is a refusal charge defended?

The questions in a refusal case are specific and largely answered by the State's own records:

• The stop and the arrest. Was there a lawful reason to stop the car, and probable cause to arrest you for DWI? If not, the refusal charge rests on a foundation that may not hold.
• The standard statement. Was it read in full, at the right time, in a language you understand?
• What you actually said. Video and audio often show an exchange that is more uncertain than the report suggests.
• The attempts. If the charge rests on inadequate samples, the Alcotest's record of each attempt, the operator's instructions and any medical condition affecting your breathing are all relevant.

Discovery should include the station video, the officer's reports, the form used for the standard statement, and the Alcotest's data for any attempts you made.

Refusal charges in Morris and Sussex County

Refusal charges are heard in the same municipal courts as DWI cases, whether the stop was in a Morris County town such as Denville or Randolph or a Sussex County town such as Byram or Franklin. Our pages on criminal defense in Morris County and Sussex County cover how cases move through each county. Shorter answers to related questions are in the DWI section of our Knowledge Center.

Talking to a lawyer about a refusal charge

A refusal charge can carry license and interlock consequences close to those of a DWI, and it is worth the same careful look at the evidence. Bring your summonses and any paperwork from the police to a consultation, and we can go through what the State must prove and where your case stands. Gray Law Group is in Jefferson, Morris County, and represents drivers charged in municipal courts across Morris and Sussex counties.