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Can I refuse a breath test during a DUI traffic stop?

On Behalf of | Mar 9, 2023 | Drunk Driving |

While motor vehicle accidents are unexpected, states do their best to prevent them. One of New Jersey’s preventive measures is road checks for suspected impairment. The checking process involves questioning, vehicle search, sobriety and breath tests. If the police officer has reasonable grounds to suspect that a driver is intoxicated, they can justifiably collect a breath sample from them.

But can the driver refuse to perform a breath test?

Implied consent exists

In New Jersey, any person driving a motor vehicle on a public road or highway implicitly consents to submit to the test if the police officer’s suspicion is reasonable. If flagged individuals refuse to do a breath test, the officer can immediately file a court summons and the court can penalize the driver.

Even if the driver does not say “no” outright, the officer can interpret the following as a refusal to take a breath test:

  • Silence: The driver must express their willingness to perform the test. They cannot invoke their constitutional right to remain silent as New Jersey already held that this right does not apply to breath tests.
  • Fake or insufficient samples: If the individual performs fake breathalyzer blows or provides insufficient air volume for a valid reading, the court may charge them for refusal.
  • Delaying the test: The officer can flag it as denial if the driver engages in acts that intend to stall the breath test.
  • Conditional agreement: The police can interpret it as refusal if the accused gives conditions in return for performing the test.

Penalty for refusing

A driver’s refusal to submit to a justified breath test can result in mandatory penalties such as license suspension, imposition of fines or arrest. It is good to note that these penalties are separate and applied on top of DUI penalties.

Breath tests are a legal requirement, not a choice. Drivers pulled over for a check must willingly coordinate with police officers. However, if one believes that the suspicion is unreasonable or the involved officer failed to follow the proper procedure, one may be able to use it as a defense before the court.