What Are the Consequences of Refusing a Breathalyzer Test in NJ?

In New Jersey, you cannot refuse a breathalyzer without facing serious consequences. Under the state’s implied consent law, drivers automatically agree to submit to breath testing when suspected of DWI. Refusing triggers a separate offense under N.J.S.A. 39:4-50.4a with mandatory penalties including license suspension, fines, and ignition interlock requirements. But you can also challenge refusal charges in court if proper procedures were not followed.

At The Kugel Law Firm, Attorney Rachel Kugel defends drivers throughout Jersey City, Hudson County, and New Jersey. Our drunk driving defense lawyers in New Jersey understand implied consent laws and fight to protect your driving privileges. We examine every detail of your stop and arrest to build the strongest possible defense.

This guide explains what counts as refusing a breath test, the penalties you face for each offense, and how to challenge refusal charges in New Jersey courts. Contact The Kugel Law Firm today at (973) 854-0098 to schedule a consultation.

What Is New Jersey’s Implied Consent Law?

New Jersey’s implied consent law means you agree to breath testing simply by driving. The law appears in N.J.S.A. 39:4-50.2 and applies to anyone operating a vehicle on public roads or quasi-public areas in the state.

By accepting your New Jersey driver’s license, you consent to provide breath samples when law enforcement has probable cause to suspect DWI. This consent is automatic and does not require your verbal agreement at the time of the stop. It applies only to breath tests, not to blood or urine tests without additional procedures.

Officers must follow specific protocols before charging you with refusal. They must read the Standard Statement for Motor Vehicle Operators, an 11-paragraph document issued by the New Jersey Attorney General, that explains your obligations and the consequences of refusing. If the officer fails to read this statement properly or you did not understand it due to language barriers, this may form the basis of a defense.

The New Jersey Motor Vehicle Commission enforces these requirements through administrative penalties that are separate from criminal court proceedings. Cases are typically heard in municipal court, including the Jersey City Municipal Court at 365 Summit Avenue, where judges determine whether officers had proper probable cause and followed correct procedures.

What Actions Count as Refusing a Breathalyzer Test?

Refusal is not limited to saying the word “no.” New Jersey courts recognize multiple types of conduct as refusal under N.J.S.A. 39:4-50.4a.

Outright Refusal or Silence

Explicitly telling the officer you will not take the test is obvious refusal. Non-responsiveness or silence when the breath test is requested can also be treated as refusal under New Jersey law.

Conditional Responses

Making your consent conditional on any event is refusal. This includes responses like “I want to call my lawyer first,” “Can I use the restroom first?” or “If you tell me why I was stopped.” These qualify as refusal because they place conditions on your consent.

Insufficient Breath Samples

You must provide at least two adequate breath samples for the Alcotest device to generate valid results. Deliberately providing short samples or insufficient volume constitutes refusal. Some drivers physically cannot provide adequate samples due to respiratory conditions like asthma or emphysema, which may provide a legitimate defense if properly documented.

Jersey City Medical Center at 355 Grand Street handles cases where officers seek blood tests when breath samples cannot be obtained, though blood tests typically require a warrant or exigent circumstances.

Delaying the Test

Stalling or deliberately delaying the breath test administration is refusal. The New Jersey Supreme Court ruled that suspects have no right to delay breath testing. Reasonable delays for medical treatment or transport to the testing location do not count as refusal.

Cases are processed through municipal courts like the Jersey City Municipal Court or the Hudson County Superior Court at 595 Newark Avenue depending on the charges involved. Each court follows strict procedures for refusal cases to ensure defendants understand their rights and the evidence against them.

What actions count as refusing a breathalyzer test?	How New Jersey law treats the action	Important clarification
Outright Refusal or Silence	Saying you will not take the test, remaining silent, or failing to respond when the test is requested can be treated as refusal.	Refusal is based on conduct, not just verbal statements.
Conditional Responses	Agreeing to the test only if certain conditions are met is treated as refusal.	Requests to speak with a lawyer, use the restroom, or receive explanations before testing qualify as refusal.
Insufficient Breath Samples	Providing short or inadequate breath samples that prevent valid results may be treated as refusal.	Documented medical conditions that limit breath capacity may support a defense.
Delaying the Test	Intentionally stalling or delaying the breath test is treated as refusal.	Legitimate delays for medical care or transport generally do not count as refusal.

What Are the Penalties for Refusing a Breathalyzer Test?

Refusing a breathalyzer in New Jersey results in mandatory license suspension and substantial fines. Penalties increase with each offense.

For a first refusal offense, you face a seven to twelve month license suspension. You must pay fines between $300 and $500. You must install an ignition interlock device during your suspension period and for six to twelve months after license restoration. You must also complete the Intoxicated Driver Resource Center program.

Second refusal offenses carry a one to two year license suspension. Fines increase to $500 to $1,000. The ignition interlock requirement extends to one to three years after restoration. Third and subsequent refusals result in an eight-year license suspension, a $1,000 fine, and two to four years of ignition interlock requirements after restoration.

The New Jersey Motor Vehicle Commission imposes additional annual surcharges of $1,000 per year for three years following a refusal conviction. These surcharges are mandatory and separate from court-imposed fines. Drivers must pay these fees to the MVC to maintain or restore driving privileges.

These penalties apply regardless of whether you are convicted of drunk driving. You can face both refusal penalties and driving while intoxicated penalties for the same incident. The refusal suspension typically runs consecutive to any DWI suspension for second and subsequent offenses.

New Jersey DWI Lawyer

Should You Refuse a Breathalyzer Test If You’ve Been Drinking?

This is a difficult decision with no universal answer. The choice depends on your specific situation, but understanding the consequences helps you make an informed decision.

Taking the test provides immediate proof of your blood alcohol concentration. If your BAC is 0.08% or higher, this evidence will be used against you in court. However, if you believe you will pass the test or your BAC is close to the legal limit, taking it might be your best option.

Refusing eliminates one piece of evidence but creates its own set of problems. The refusal itself becomes a separate offense with penalties that can match or exceed DWI penalties. Prosecutors can also use your refusal as evidence of consciousness of guilt, suggesting you knew you would fail the test.

Law enforcement can still charge you with DWI based on observational evidence. Officers document your behavior, appearance, slurred speech, bloodshot eyes, and field sobriety test performance. This evidence alone can support a DWI conviction even without breath test results. Cases handled at the Jersey City Municipal Court frequently proceed on observational evidence when breath test results are unavailable.

You should consult a New Jersey driving while intoxicated attorney immediately after any drunk driving stop or arrest. An experienced lawyer can review the specific facts of your case and advise you on the best strategy. 

Will a Breathalyzer Refusal Stay on Your Record?

Yes, a breathalyzer refusal conviction permanently stays on your driving record in New Jersey. This is a critical fact many drivers do not understand.

Refusal is a motor vehicle offense, not a criminal offense. This means it does not appear on your criminal record for background checks. However, it does remain on your driving abstract maintained by the New Jersey Motor Vehicle Commission.

How Can You Challenge a Refusal Charge?

You can defend against refusal charges by challenging the procedures officers followed. Several effective defense strategies exist.

Invalid Stop or Lack of Probable Cause

The officer must have had reasonable suspicion to stop your vehicle and probable cause to request a breath test. If the stop was unlawful or the officer lacked probable cause to believe you were driving under the influence, the refusal charge should be dismissed. Your attorney can examine the reason for the stop, the officer’s observations, and whether the stop violated your Fourth Amendment rights.

For example, if an officer stopped you solely because you were leaving a bar parking lot without observing any traffic violations or signs of impairment, this may constitute an invalid stop. Cases heard at the Hudson County Superior Court at 595 Newark Avenue frequently depend on whether the initial stop was legally justified.

Failure to Provide Proper Warnings

Officers must read the complete Standard Statement for Motor Vehicle Operators before charging you with refusal. This statement, issued by the New Jersey Attorney General, explains your obligations under the implied consent law and the consequences of refusing. If the officer failed to read this statement, read it incorrectly, or did not give you adequate time to understand it, your attorney can argue the refusal charge is invalid.

Language barriers can also provide a defense. If English is not your primary language and you did not understand the Standard Statement, this may demonstrate you did not knowingly refuse the test. Courts must ensure defendants understood what they were refusing.

Medical Conditions or Physical Inability

Some drivers physically cannot provide adequate breath samples due to legitimate medical conditions. Asthma, emphysema, chronic obstructive pulmonary disease, and other respiratory conditions can make it impossible to blow forcefully enough to register on the Alcotest device. If you have documented medical conditions that prevented you from providing a sample, this can be a valid defense.

Your attorney will need medical records and potentially expert testimony to establish that your inability to provide samples was genuine and not deliberate refusal. Hospitals in Hudson County like Jersey City Medical Center at 355 Grand Street may have treated you for respiratory issues that support this defense.

Improper Test Administration

The Alcotest device must be properly maintained, calibrated, and operated according to specific protocols. If the device was not functioning correctly, not properly calibrated, or the officer was not properly trained to administer the test, your attorney can challenge the validity of any test results or the foundation for the refusal charge.

Defense attorneys examine maintenance records, calibration logs, and officer training records. The New Jersey Supreme Court has strict requirements for Alcotest reliability that must be met in every case.

Get Help from a New Jersey Drunk Driving Attorney

Breathalyzer refusal charges carry serious consequences that can affect your life for years. You face mandatory license suspension, substantial fines, insurance increases, and a permanent mark on your driving record.

New Jersey driving while intoxicated attorney Rachel Kugel has defended drivers throughout Jersey City, Hudson County, and New Jersey against drunk driving and refusal charges. Our drunk driving defense lawyers know how to challenge improper stops, contest refusal allegations, and fight for your driving privileges. We examine every detail of your arrest, from the initial traffic stop to the procedures officers followed at the station.

The Kugel Law Firm understands New Jersey’s implied consent laws and the defenses available to refusal charges. Whether you face first-time charges or have prior offenses, we can build strong defense strategies tailored to your situation. Contact us today at (973) 854-0098 to schedule a consultation.