Refusing a breath test in New Jersey: penalties and defenses

Implied consent and what refusal means

By driving in New Jersey, you are considered to have agreed to give breath samples if an officer has reasonable grounds to believe you were driving while intoxicated. That is the implied consent law, N.J.S.A. 39:4-50.2. After an arrest, the officer must read you a standard statement that explains the test and the consequences of refusing.

A refusal does not have to be a flat no. The New Jersey Supreme Court held in State v. Widmaier that anything substantially short of an unconditional, unequivocal yes can count as a refusal. Courts have also said you have no right to delay the test, so asking to call a lawyer or a family member first can be treated as a refusal.

You also have the right to an independent test of breath, urine or blood by a person or physician of your choice, in addition to the police test, and the officer is supposed to tell you about it.

The police must also make a record of the breath test, including the date, time and results, and give you a copy if you ask. The implied consent law covers breath samples. It does not allow officers to force a test on someone who is physically resisting.

What the State has to prove

In State v. Marquez (2010), the New Jersey Supreme Court laid out four elements. The State must show that the officer had probable cause to believe you were driving, or in physical control of a vehicle, while impaired; that you were arrested for drunk driving; that the officer asked you to take a breath test and told you the consequences of refusing; and that you refused.

Because refusal is a quasi-criminal case, the Court said the State must prove it beyond a reasonable doubt. Notice what is missing: the State does not have to prove you were actually drunk. That is why people are sometimes found not guilty of DWI but guilty of refusal.

Marquez also held that the warning has to be given in a language you speak or understand. In that case, a driver who did not understand English and was warned only in English had his refusal conviction reversed.

Penalties after the 2019 interlock law

New Jersey overhauled its DWI and refusal penalties in P.L.2019, c.248, effective December 1, 2019. The law replaced long license suspensions with ignition interlock requirements for most offenders. In December 2023 the Legislature extended those rules (L.2023, c.191), so they remain in effect. Under N.J.S.A. 39:4-50.4a and 39:4-50.17, the refusal penalties are:

The 2023 extension pushed the expiration of the 2019 changes from the fifth to the tenth year after they took effect, and it clarified that the older penalty language would return if the changes ever expire. Because these rules have changed twice in a few years, check the version that applies to the date of your arrest.

• First offense: a $300 to $500 fine, forfeiture of your right to drive until an ignition interlock is installed in the vehicle you mainly drive, and the interlock for 9 to 15 months after your license is returned.
• Second offense: a $500 to $1,000 fine, forfeiture for 1 to 2 years after the interlock is installed, and the interlock for 2 to 4 years after your license is returned.
• Third or later offense: a $1,000 fine, forfeiture for 8 years after the interlock is installed, and the interlock for 2 to 4 years after your license is returned.
• A referral to an Intoxicated Driver Resource Center, with the same requirements as a DWI conviction.
• An MVC insurance surcharge of $1,000 a year for three years.

Refusal and DWI together

Most refusal charges come with a DWI charge from the same stop. For a first offense, the court can run the refusal license penalty at the same time as the DWI penalty or after it. For a second or later offense, the refusal penalty must run after any DWI penalty.

Prior offenses count even if they happened elsewhere. A substantially similar conviction or administrative finding in another state counts as a prior offense for refusal purposes.

Living with an ignition interlock

An ignition interlock is a breath testing device wired to your car. The car will not start until you blow a clean sample. If you are ordered to use one, you can drive only vehicles that have a device installed, and you must tell the court if you get access to another vehicle.

The rules are strict. Giving false information about which vehicles you own or drive, or falsely claiming you have none, is treated as perjury. And if you say you have no vehicle, your license is forfeited for the full installation period instead.

If you do not have a valid New Jersey license at the time of sentencing, you cannot get one during the sentence, and once you do get one you still have to serve the interlock period. The refusal penalties also include the Intoxicated Driver Resource Center requirements, and failing to complete them carries its own penalties.

Plea agreements and defenses

For decades, New Jersey court guidelines barred plea agreements in DWI cases. A 2023 law changed that, and in February 2024 the New Jersey Supreme Court withdrew the guideline. Plea agreements in DWI cases are now allowed on the prosecutor's recommendation with a proper factual basis. The refusal statute has similar language, though any deal depends on the prosecutor and the facts.

Common defense questions in refusal cases include whether the officer had probable cause for the arrest, whether the standard statement was read properly and in a language you understood, and whether what you said or did really amounted to a refusal. Video from the patrol car and the station is often central.