NJ DWI Refusal Lawyer

N.J.S.A. 39:4-50.2 Consent to Taking of Samples Deemed Given

Pursuant to N.J.S.A. 39:4-50.2, by simply driving on any public road, street or highway or quasi-public area, a person is deemed to have given consent to the State to perform breathalyzer examinations. However, if a driver suspected of DWI refuses to submit to such a test, the State must prove the following to convict the individual:

  1. That the arresting officer had probable cause to believe that the defendant was operating a motor vehicle while being under the influence of alcohol
  2. That the incident took place on a public road, street, highway or quasi-public area;
  3. That the driver refused to submit to the Alcotest machine;
  4. That the request for the defendant to take the test was made by a police officer who had reasonable grounds to believe that the defendant had been operating a motor vehicle while being intoxicated; and
  5. That the attempt to administer the Alcotest machine was conducted in accordance with the provisions of the implied consent statute.

DWI Refusal Lawyers in Atlantic City NJ

There is an incredibly low threshold to determine what a “refusal” is. Courts apply a standard that anything “substantially short of an unqualified, unequivocal assent to an officer’s request” by the defendant to submit a breath sample will constitute a refusal.

First Offense Refusal

If convicted for refusal to submit to a breath sample, the defendant’s license for at least seven (7) months but not more than one (1) year. The defendant will also face fines ranging from $450.00 to $1000.00, will be required to attend an Intensive Drivers Resource Center for twelve hours and must install the ignition interlock device.

Second Offense Refusal

If convicted of a second refusal to submit a breath sample or refusal in connection with a second offense of driving while intoxicated, the defendant will be subjected to a mandatory two-year suspension of their driver’s license. Additionally, the defendant will be subject to a fine between $700.00 to $1,300.00,  be required to attend an Intensive Drivers Resource Center for forty-eight hours and must install the ignition interlock device.

Third Offense Refusal

If the defendant’s refusal to submit to a breath sample is in connection with a third or subsequent drunken driving offense, the defendant will be treated as a third offender. As a third offender, the defendant’s driver’s license will be suspended for 10 years. This period of may not be served concurrently, but rather consecutively, to any suspension imposed as a result of a companion drunk driving conviction. Moreover, the defendant will be fined $1,300.00, be required to attend an Intensive Drivers Resource Center and must install the ignition interlock device.

School Zone DWI Refusal

If the violation in question occurs within a School Zone, then the penalties will be more severe. The following are instances that will invoke School Zone penalties for a DWI:

  1. If the driver is within 1000 feet of property used for “school purposes”; or,
  2. The driver drove through a school crossing that has been designated as such by ordinance or resolution; or
  3. The driver drove through a school crossing knowing that juveniles are actually present, whether or not it has been designated as such by ordinance.

In regard to the first and second requirements listed above, it is not necessary for the prosecution to prove that you knew of your presence within a school zone. If you have been stopped for a DWI in a school zone at an hour or time of year when school is not in session, you are still subject to the increased penalties associated with the charge. However, as set forth by the third requirement, if the DWI in a School Zone offense occurs in an area that has not been approved by a legislative ordinance, then the prosecution must prove that you knew that children were present at the time of the offense.

If the violation is a first offense within a School Zone then the court will impose a fine between $600.00 and $1,000.00, along with a period of license suspension between one (1) and two (2) years. For a second offense, a fine between $1,000.00 and $2,000.00, as well as a license suspension for a period of four (4) years. For a third or subsequent offense, a fine of $2,000.00 and a license for twenty (20) years.