So you’ve been pulled over for a DUI or DWI. Can you refuse a breathalyzer test?

The answer depends on state laws and the type of chemical test being administered.

  • Portable breath screen or breathalyzer tests are carried out on the field by police officers and administered at the roadside when you’re pulled over.
  • This is different than chemical tests administered at the police station after your arrest.

New Jersey and New York state laws handle breathalyzer refusal cases differently. The outcome of your case will be decided based on the laws of the state where you got arrested. But even with different laws, states still communicate with each other. So a refusal conviction in one state may reflect on your driver’s license in another.

Breathalyzer and chemical test results usually make up the strongest evidence in the state’s DUI cases against drivers. So what if you refuse to take the test? That means the state doesn’t get the evidence against you – which must be a good thing, right? Not exactly.

There are some situations where you can refuse a chemical test with no consequences. But in many cases, you must take the test or you could face penalties and driving restrictions.

On the other hand, breathalyzer and chemical tests must be administered properly. If your arresting officer fails to follow the correct procedures or you can show that there was no probable cause to arrest or test you in the first place, you could beat the refusal and DUI/DWI charges against you. A local DUI/DWI attorney can help you navigate the best options for your case.

Can You Refuse a Breathalyzer Test for a DUI in New Jersey?

As an “implied consent” state, New Jersey is strict on chemical test refusals. According to New Jersey law, by driving a vehicle in the state, you automatically consent to submit a chemical breath test to determine your blood alcohol content (BAC).

However, you do not have to submit to handheld or portable breathalyzer tests in New Jersey, including those used at roadside traffic stops and DUI checkpoints. In fact, you can refuse these portable breath tests (and field sobriety tests) with no consequences.

But you may still be arrested for a DUI – and while you can refuse a breath test at the scene of your arrest, you cannot refuse a chemical breath test at the police station without penalties.

What is the difference between portable breath tests (PBTs) and official chemical testing? PBTs use handheld equipment that is less accurate than the official test, which is also why portable breath test results don’t usually get used as evidence in court in NJ. Instead, police use PBT results to establish probable cause to arrest you for DUI. Then they use the official breath test results from the police station as evidence.

In New Jersey, you do not have the right to have an attorney, physician, or anyone else present while providing samples for a breath test. You cannot delay giving a sample, either. However, New Jersey’s implied consent law does not apply to blood or urine tests, only breath tests.

What Are the Penalties for Refusing a Chemical Test in NJ?

In New Jersey, if you refuse to submit to a breath test at the police station, you could be charged with a DUI and a DWI refusal. That means you could face the stacked consequences of both.

Your penalties will vary based on whether this is a first or subsequent offense. In some cases, the penalties for refusing a chemical test can be just as bad or worse than a DUI charge.

  • You could be fined anywhere between a few hundred to a thousand dollars.
  • Your driver’s license could be suspended or revoked from 9 months to 8 years.
  • You may have to pay additional mandatory fines, go through New Jersey’s Intoxicated Driving Program (IDP), and/or install an ignition interlock device (IID).

Penalties will get more severe the more aggravating factors there are in your case – for example, if you were driving recklessly or if you caused a serious accident with injuries. Your lawyer can help you argue mitigating factors instead to get a lighter punishment.

Can You Refuse a Breathalyzer Test for a DWI in New York?

Unlike in New Jersey, portable breath test (PBT) results taken roadside or at the scene of your arrest may be admitted as evidence in New York DWI cases, so long as:

  • The device used has been approved by the state,
  • You were warned about the penalties of refusing the test, and
  • The test was administered properly by the officer.

New York is also an implied consent state. By driving in the state at all, the government assumes you consent to chemical testing in DWI cases. If a roadside test shows your BAC above the legal limit, you will take an official chemical test at the police station after your arrest.

You can still refuse to submit to a breath or chemical test in New York. But that comes with fines, penalties, and consequences – in addition to the penalties you face for the DWI charge.

What Are the Penalties for Refusing a Chemical Test in NY?

The penalties you get in New York for refusing a breath test will depend on whether you’re facing your first DWI charge or if you have a previous DWI on your record.

  • You may have to pay hundreds of dollars in civil penalties.
  • Your driver’s license may be revoked between 1 year and 18 months; 

New York also adds greater penalties and surcharges if there are factors like multiple alcohol- or drug-related misdemeanors, felonies, or aggravated DWI violations on your driving record. You may face more severe consequences if you recklessly caused an accident or injured others.As soon as you get your phone call, you should contact a knowledgeable DUI/DWI attorney who can help your case. At The Kugel Law Firm, we’re not here to judge you – we’re here to defend you. Schedule a no-risk case consultation with our exceptional lawyers now. You can reach us at our New York offices at (212) 372-7218 and our New Jersey offices at (973) 854-0098.