December 16, 2019

Can I Refuse A Breathalyzer or Blood Test Once I’ve Been Arrested?

Home / Criminal Defense / Can I Refuse A Breathalyzer or Blood Test Once I’ve Been Arrested?

As experienced traffic lawyers serving Burlington County residents, The Law Offices of Jason Pollack understands that drivers may not be fully aware of all of their rights when it comes to receiving a DUI. From providing necessary information to being subject to field sobriety tests, it’s understandable that motorists are wary of what they need to comply with and what they are allowed to refuse. Today, we’ll take an in-depth look at a few parts of a standard DUI stop that can determine the degree of potential jail time, penalties, and exoneration: the breathalyzer test and the blood test.

What’s Implied Consent?

New Jersey’s “implied consent” law considers anyone who operates a motor vehicle in the state to have given consent to chemical testing of the driver’s breath, although the legislation does not include blood or urine tests. A test refusal in New Jersey test isn’t handled administratively (Department of Motor Vehicles), but by the magistrate court.

A driver who refuses a test will face penalties if the magistrate judge determines the following:

  • The officer had probable cause to believe the driver was in control of the vehicle while under the influence of alcohol or drugs
  • The driver was arrested for a DWI
  • The officer made the driver aware of their refusal’s consequences
  • The officer requested a breathalyzer test
  • The driver refused to submit to it

Do I Have the Right to Refuse a Breathalyzer Test?

The officer also should inform you of your rights if and when you submit to participate in a field sobriety test (walk-and-turn, one-leg stands, etc.) and take a breathalyzer test. While you have the right to refuse a breath test in the state of New Jersey, doing so may result in the following penalties:

  • First offense – suspension of your driver’s license for seven months to a year and a fine ranging from $300 to $500.
  • Repeat offenders – If this is your second refusal, you will lose your license for two years and have to pay a fine ranging from $500 to $1,000.
  • For your third refusal, the license suspension lasts for ten years, and you’ll pay a fine of $1,000.

In the event you refuse to take a chemical test after you have been arrested for a DWI when driving on school grounds or even within 1,000 feet of a school, the penalties can double.

What About A Blood Test?

In Birchfield v North Dakota, the United States Supreme Court found that warrantless blood testing was illegal. This ruling means that police cannot perform a blood test on you in the event of a DUI arrest unless they secure a warrant from a judge that allows them to do so. 1

While we believe that no one should operate a vehicle while under the influence, we also understand how crucial it is to understand your rights as a motorist in New Jersey. If you or someone you know requires a trusted DWI defense attorney near Camden County, contact The Law Offices of James Pollack today.


Author: Jason Pollack
Read more articles »