Police Statement Requesting Permission for Breath Test

If you are taken into custody on suspicion of DWI, the arresting officers must read you the following statement related to taking your BAC via breath test.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.

7. 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.

8. 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.

9. Any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense.

10. 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.

11. 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: _________________________________________

(ADDITIONAL INSTRUCTIONS FOR THE POLICE OFFICER)
IF THE PERSON: REMAINS SILENT; OR STATES, OR OTHER WISE INDICATES, THAT HE/SHE REFUSES TO ANSWER ON THE GROUNDS THAT HE/SHE HAS A RIGHT TO REMAIN SILENT, OR WISHES TO CONSULT AN ATTORNEY, PHYSICIAN, OR ANY OTHER PERSON; OR IF THE RESPONSE IS AMBIGUOUS OR CONDITIONAL, IN ANY RESPECT WHATSOEVER, THEN THE POLICE OFFICER SHALL READ THE FOLLOWING ADDITIONAL STATEMENT:

FULL TEXT OF ADDITIONAL STATEMENT FOLLOWS:

I previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you a 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. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing 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. †††

† Once again, I ask you, will you submit to giving samples of your breath?

ANSWER: _____________________________________________________________

Remember – it is the State’s burden to prove that your were read the above statement and questions. If they cannot prove this, the charges of you refusing to take the test do not stand and you cannot be convicted, though may still be charged (and convicted) on the original DWI offense.