Refusing to Submit to a Breathalyzer in New Jersey
New Jersey Breath Test Refusal Law
When you receive your driver’s license in New Jersey, you give your implied consent to submit to chemical tests. “Implied consent” refers to an implicit agreement between New Jersey drivers and the State in which drivers agree to submit to chemical tests in exchange for the privilege of driving. Chemical tests can include providing blood, breath, or urine samples. Therefore, if you are arrested for a DUI offense, you are required by law to submit to a breathalyzer test.
Refusal to Submit to Breath Test in NJ
If you refuse to take a breathalyzer test when ordered to do so by law enforcement, you will be charged for refusing. Refusing to submit can include: a response that is ambiguous or conditional; an explicit refusal; or silence. In other words, by not explicitly agreeing to a breathalyzer, a person is refusing.
In addition to being charged with refusing to submit, you may still be charged with driving under the influence. A breathalyzer test result is not required to convict you of driving under the influence.
Refusal vs. Miranda
At present, Miranda rights do not apply to the administration of a breathalyzer test. Miranda warnings advise you of your right to have an attorney present. Frequently, confusion exists as to whether a person has a right to an attorney during a breathalyzer test. There is no right to have an attorney present during the administration of a breathalyzer test in New Jersey.
New Jersey Breathalyzer Refusal Penalties
A charge for refusing to submit to a breathalyzer is serious. A conviction can carry the same penalties as a DUI conviction. The chart below lists the penalties for a refusing to submit to a breathalyzer test under N.J.S.A. § 39:4-50.4. These penalties are in addition to any penalties you may receive from a DUI or DWI conviction.
(for 3 years)
| Offense |
Fine |
Fees |
Surcharges |
Loss of Driving Privileges |
Intoxicated Driver Resource Program (IDRC) |
| 1st |
$300-$500
School Zone: $600-$1,000 |
$230/day to New Jersey Intoxicated Driver Resource Center Program (IDRC)
$100 to Drunk Driving Fund
$100 to Alcohol and Rehabilitation Fund
$75 to Neighborhood Services Fund |
$1,000/ year |
7 months – 1 year
School Zone: 1 – 2 years |
Minimum of 12 hours |
| 2nd |
$500-$1,000
School Zone: $1,000-$2,000 |
$230/day to IDRC
$100 to Drunk Driving Fund
$100 to Alcohol Education and Rehabilitation Fun
$75 to Neighborhood Services Fund |
$1,000/ year (for 3 years) |
2 years
School Zone: 4 years |
Minimum of 12 hours |
| 3rd |
$1,000 fine
School Zone: $2,000 |
$230/day to IDRC
$100 to Drunk Driving Fund
$100 to Alcohol and Rehabilitation Fund
$75 to Neighborhood Services Fund |
$1,500/ year (for 3 years) |
10 years
School Zone: 20 years |
Minimum of 12 hours |
Refusal Warnings
Before the administration of a breathalyzer test, police officers are required to advise you of the penalties for refusing to submit. The following is provided by the New Jersey Division of Motor Vehicles:
THE ARRESTING OFFICER MUST READ THE FOLLOWING TO THE DEFENDANT:
- You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs or with a blood alcohol concentration at, or above, that permitted by law.
- You are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
- A record of the taking of the samples, including the date, time, and results, will be made. Upon your request, a copy of that record will be made available to you.
- Any warnings previously given to you concerning your right to consult with an attorney do not apply to the taking of breath samples and do not give you the right to refuse to give or to delay giving samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician or anyone else present, for the purpose of taking the breath samples.
- After you have provided samples of your breath for chemical testing, you have the right to have a person or physician of your own selection, and at your own expense, take independent samples and conduct independent chemical tests of your breath, urine, or blood.
- If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.
- Any response that is ambiguous or conditional, in any respect, to your giving CONSENT TO THE TAKING OF BREATH SAMPLES WILL BE TREATED AS A REFUSAL TO SUBMIT TO BREATH TESTING.
- According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle may be revoked by the court for a period of no less than seven months and no more than 20 years. The Court will also fine you a sum of no less than $300.00 and nor more that $2,000.00 for your refusal conviction.
- Any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense.
- If you are convicted of refusing to submit to chemical tests of your breath, you will be referred by the Court to an Intoxicated Driver Resource Center and you will be required to satisfy the requirements of that center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.
- I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?
ANSWER: _________________________________________
New Jersey’s State Statute on Refusing to Take a Breathalyzer Test
N.J.S.A. § 39:4-50.2 (Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused) states:
- Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be 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, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50.
- A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
- In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.li>
- The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.
- No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act. A standard statement, prepared by the director, shall be read by the police officer to the person under arrest.L.1966, c. 142, s. 2. Amended by L.1977, c. 29, s. 3; L.1981, c. 512, s. 1, eff. Jan. 12, 1982.
What Should I Do If I Have Been Charged with Refusing to Take a Breathalyzer Test?
If you have been charged for refusing to submit to a breathalyzer or any other DUI offense, the Union County law firm of Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC can assist you in your defense. Our firm represents clients in DUI related offenses. Contact us to schedule a free consultation.
Free Consultations Available – New Jersey DUI/DWI Lawyers
You can reach us 24 hours a day. Call (908) 322-7000.
