Refusals are Now DWIs in New Jersey
Posted By Steven J. Richardson on February 2, 2010
Under New Jersey law, if a police officer has probable cause to believe that you were operating a motor vehicle while under the influence of drugs or alcohol, he has the right to arrest you and require you to submit two breath samples to an Alcotest breathalyzer machine to determine your blood alcohol content. You must do this. You have no fifth amendment right to refuse nor a 6th amendment right to have an attorney present. Should you persist in refusing to do so, you can be charged with a separate offense of Refusal, in addition to drunk driving (DWI). Both charges carry the same penalties in terms of fines and license suspension. Basically, there is no upside to refusal, as the penalties are the same. In fact, there is a downside if you are a first offender. If you take the breathalyzer and get a reading of .08 to .1, the license suspension is three (3) months, while if it is .1 or above, it is seven (7) to twelve (12) months. With a refusal, it is a flat seven (7) to twelve (12), as there is no breathalyzer reading to grade the offense.
On January 7, 2010, the consequences became even more serious. New Jersey’s Appellate Division reversed a long-standing precedent, ruling that a prior conviction for refusal will now count as a prior DWI conviction for purposes of sentence enhancement. Under New Jersey law, a second offense carries a two (2) year license suspension, while a third offense carries a ten (10) year suspension and mandatory jail time. This ruling becomes important in cases where, because of a lack of evidence as to impairment, the DWI is dismissed, but the refusal still stands. I had this happen to a client a few months ago, where the field sobriety test was not enough to prove impairment, but was enough to show probable cause to arrest and obtain a breath sample. The DWI was dismissed, but he plead to the refusal.
There is another impact to the ruling as well. Under New Jersey law, if there is more than a ten (10) year period between a first and a second offense DWI, the second is treated like a first for sentencing purposes. In the case before the Court, the defendant had a 1979 DWI conviction and a 2006 Refusal Conviction. The defendant argued that she should be considered a first offender since the only prior DWI case was more than 10-years old and the refusal does not enhance the DWI sentence. The Appellate Division ruled that she should be treated as a third offender as the refusal conviction must now be regarded as a DWI conviction for sentencing purposes. Ouch! All of this simply reinforces what I tell my clients: blow into the tube and take your chances. Maybe your reading will be too low (below .08), the machine won’t be working properly that day, or the police may not follow proper procedures or be properly trained. In other words, if you comply, you have possible defenses and a fighting chance; if you refuse, you are dead in the water, absent an issue of probable cause to arrest.
I think it’s good for NJ to get tougher — too many people are still getting killed by drunk drivers.
Elise: Thanks for the comment! I agree that drunk driving is a serious threat to the safety of motorists, and that the laws in that area should be a strong deterrent. However, I would note that the situation this post addresses (and the real impact of the court’s decision here) is where the only conviction is for a refusal; the drunk driving charge was dropped, or the defendant was acquitted. Thus, with this court decision, a person can be punished for a prior DWI offense where the state never proved its case; he/she was never shown to have driven drunk. That is where my concern lies.
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