Refusal to Provide A Breath Test

Experienced Wall NJ Breath Test Refusal Attorneys

If you were issued a summons for refusal, our former Monmouth County prosecutors and seasoned defense lawyers are well equipped to defend you. In fact, Colin Bonus, Esq., of our office, is one of only two lawyers in the state to win a refusal case before the New Jersey appellate courts over the last decade. And while many perceive refusal to provide a breath sample under N.J.S.A. 39:4-50.2 as a iron clad offense, that is far from the truth in our practice. There are many defense that can be developed if you were charged with refusing to provide a breath sample. Give yourself a legitimate chance of avoiding a mandatory drivers license suspension and other serious refusal penalties in Wall, Middletown, Tinton Falls, Holmdel, or another municipal court by contacting our attorneys. A lawyer who is experienced in refusing a breath test charges is available immediately.

New Jersey Refusal Law – N.J.S.A. 39:4-50.2

The refusal law is contained at N.J.S.A. 39:4-50.2. The elements that must be established in order to prove a refusal violation under section 39:4-50.2 are: (1) probable cause existed for the police officer to believe that the accused was driving while intoxicated (“DWI”); (2) the accused was arrested; (3) a proper request to submit a breath test was made; and (4) the defendant refused to take the test. In terms of probable cause as required in (1), whether this has been satisfied hinges on the observations and investigation at the scene. More specifically, do the facts support a reasonable suspicion to believe that there was operation (i.e. the accused was operating the vehicle)? Do the results of the Field Sobriety Tests or other facts support the reasonable conclusion that the defendant was intoxicated? Proper administration of the breathalyzer is set forth at N.J.S.A. 39:4-50.3. In this regard, the police officer must advise the accused of the penalties for refusing the test. The law sets forth a strict manner for accomplishing this – namely to read a standard consent form known as paragraph 36 that was adopted by the courts. Nothing additional needs to be done to satisfy requirement (2) other than to read the consent form properly.

What Conduct Constitutes “Refusal”?

As the largest DWI defense law firm in both Monmouth County and the state, our lawyers defend many refusal to submit to a breath test cases every year. All kinds of scenarios crop up as you can imagine, especially when you consider that those involved are often effected by alcohol or drugs to a greater or lesser degree. The question that often arises is whether the words or conduct of the accused supports a refusal. The following are some recurring situations where an individual is treated as refusing.

  • Silence. An individual can remain silent when requested to provide a breath test. While silence is generally not a defense, the confusion doctrine and/or incapacity can ofter play into the lack of a response. These are valid bases for defense to a refusal.
  • Failure to Provide Sufficient Breath. Sometimes people “fake” a blow or just cannot produce sufficient air volume to satisfy the breathalyzer. The key factor in determining whether some is really refusing is intent. If someone does not close his mouth or try to fully blow, then a refusal may be valid.
  • Conditional Consent. A consent is invalid where it is conditional. So when an accused requests an attorney before deciding to submit his breath for testing, his or her conduct may constitute a refusal. The same is true where a defendant demands a bathroom or telephone break.
  • Physical Incapacity. An individual’s inability to blow because of a physical problem is a valid defense, even when it results from intoxication (e.g. repeatedly vomit, unconscious, passed out, etc.). Other situations of incapacity include injury from the drunken driving incident, illness, or fatigue.

Tinton Falls New Jersey Refusal Lawyer

There are certainly towns in the county that handle more refusal offenses than others and Tinton Falls definitely is one of them. A primary reason for the number of individuals issued summonses for refusing a breath test in the town is the fact that there are more DWI stops there with both local and statewide traffic running through the municipality (e.g. Garden State Parkway, Route 18, etc.). If you refused a breath test in Tinton Falls or another Parkway town like Wall, Neptune, Middletown, or Holmdel, you clearly are not alone. We know this fact very well as the largest DUI defense office in the county. DWI refusal lawyers at our firm are available around the clock to discuss potential cases like yours. And initial consultations with attorneys on our defense team are always without charge. Give us a call.

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