Refusal to Submit to a Breath Test 39:4-50.4
NOTE: As of August 2011, If you drive on a suspended license due to “Refusal to submit to a breath test”, you may be subject to additional criminal charges. click here for more info.
As an attorney who is experienced in representing those charged with driving while intoxicated (DWI), one of the most common questions we are asked is whether or not there are consequences for refusing to submit to a breath test, and what an appropriate response should be in the event that a request is made during a DWI stop.
If you are asked to take a BAC test and refuse, you have a limited number of defenses with which to use. It may be that the officer who pulled you over didn’t have probable cause to do so. Additionally, alternative testing measures for DWI such as field sobriety tests and personal observation can often times be inaccurate and subjective, and, as your attorney, we will challenge the prosecution on such grounds. However, even though refusing will make if much harder for the prosecuting attorney to convict you on charges of drunk driving, bear in mind that should you refuse to take a BAC test, you may find yourself having to defend yourself against two charges: the original DWI/DUI as well as your refusal to submit to the BAC testing. Should you be convicted of both charges, your penalties could double. For a first offense conviction (in a non-school zone) on both charges, you could lose your license for 12-18 months. For a second offense, you could lose your license for 4 years. For a third or subsequent offense, you could lose your license for 20 years. As mentioned, all penalties apply to non-school zones. Should the offense occur in a school zone, all the penalties would double.
Should you refuse a BAC test, we will go over all the relevant records related to your charges and present any and all relevant issues to the judge on your case, all while trying to obtain a beneficial resolution.
However, if you are arrested and taken into custody, for whatever reason, this statement (click here to read statement) must be read to you exactly as it’s listed below in accordance with the Division of Motor Vehicles Standard Statement, in regards to an operator of a motor vehicle (N.J.S.A. 39:4-50.2(e), revised April 26, 2004).
Driving While Already Convicted
In the state of New Jersey, effective August 1, 2011, under N.J.S.A. 2C:40-26, it is now a crime in the fourth degree to drive a motor vehicle with a license that was suspended due to DWI or a Refusal to Submit to a Breath Test. Click here to read more on this new law.
Please be aware that the above is only an overview. Each case is unique and different, with it’s own set of circumstances and series of events. Therefore, never assume that you should, or should not, do something without first contacting an attorney for legal advice. If you feel you are in a situation where legal advice is needed, please don’t hesitate to contact us at 732-741-4448. We would be happy to set up a consultation with you, free of charge, to go over your particular case and to see where we may be of legal assistance.
Below is the statute 39:4-50.4 in it’s Entirety
Title 39. MOTOR VEHICLES AND TRAFFIC REGULATIONS.
Chapter 4. TRAFFIC REGULATION.
39:4-50.4a. Revocation of license for refusal to submit to chemical tests.
39:4-50.4a. Revocation of license for refusal to submit to chemical tests. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operator’s license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f.) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50.
In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.
b. For a first offense, the fine imposed upon the convicted person shall be not less than $600 or more than $1,000 and the period of license suspension shall be not less than one year or more than two years; for a second offense, a fine of not less than $1,000 or more than $2,000 and a license suspension for a period of four years; and for a third or subsequent offense, a fine of $2,000 and a license suspension for a period of 20 years when a violation of this section occurs while:
(1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;
(2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or
(3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.
A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1997, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.
It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.
This statute is current as of 1/1/2008. It is subject to revision by the Legislature and this web site does not necessarily update the statute as it may be revised. For the most up to date version of the statute see the web site of the Legislature of the State of New Jersey.