If you are arrested for DWI, the arresting officer will request that you submit to a chemical test. If you refuse, the punishment can be severe. You will typically be punished for the refusal and the DWI. As a result, you face a potential double conviction, and the courts can sentence concurrently (at the same time) or consecutively (in addition to one another). In addition, a current rule prevents the dismissal of the refusal charge in first offense cases. This means that if you refuse a test and you are later convicted of a DWI, you may be convicted of a refusal as well. Both convictions will show on your driving record.
A conviction for refusal carries a seven to 12 month license suspension for a first offense, two years for a second and ten years for a third. If you have prior DWI convictions, a current refusal conviction will count as a subsequent offense.
If you have been charged with refusing to take a breath test, there are defenses to that charge including a probable cause challenge and challenges to field sobriety tests. In addition, you MUST be read the following statements exactly as they are set forth below once you are in custody. The state must prove that you were read this form; otherwise, the refusal charge cannot stand.
The Arresting Officer Must Read the Following to the Dfendant:
- 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 and no more than $2,000 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? You must answer the officer at this point in the questioning. If you do not answer or you answer ambiguously, the officer must continue this process as follows.