During a DUI Arrest In New Jersey, Am I Entitled to a Lawyer Before Deciding Whether or Not to Take A Breath Test?

During a DUI Arrest In New Jersey, Am I Entitled to a Lawyer Before Deciding Whether or Not to Take A Breath Test?

When a police officer pulls you over because they suspect you of DWI or another traffic violation or crime, you may be nervous and unsure how to respond to the officer’s questions and requests. If the officer suspects that you are intoxicated or impaired in some way, they are likely to ask you to take a breath test to measure your blood alcohol content (BAC). One common question is whether you are entitled to talk to an attorney before you decide whether to take a breath test.  The short answer is, no.  Here is why…

New Jersey’s Implied Consent Law

Under New Jersey law, you have no right to consult an attorney before you take a breath test under these circumstances. You must decide whether to take a test at the time and have no right to delay that decision. As a result, you should be aware of your rights in this situation and the potential implications of taking and not taking a test.

Under N.J.S.A 39:4-50.2, you already have given implied consent to taking a chemical test simply by having a driver’s license and driving on New Jersey roads. In other words, even though you haven’t expressly given permission to take a breath test to measure your BAC, your permission is implied because you agreed to submit to this testing when you chose to drive.

However, the implied consent law does not cover blood testing. For example, if you are arrested for DWI, the implied consent law does not require you to submit to a blood test to measure your BAC. Likewise, the implied consent law does not extend to standardized field sobriety tests (SFST) or drug recognition evaluation (DRE).

What is Implied Consent in NJ?

How the Implied Consent Law Works

If a police officer stops you and reasonably suspects you are impaired, they can ask you to undergo a breath test. You can choose to submit to the test. If you do, and the results show that your BAC is over the legal limit, you likely will be charged with driving while intoxicated.

On the other hand, you may choose to refuse the test, which is where the implied consent law comes into play. If you do not agree to provide a breath sample or you give a conditional answer, the officer will read you a standard implied consent form at that point. This statement advises you of your rights and obligations concerning the breath test, including that you do not have the right to an attorney, physician, or anyone else present or to advise you during the breath test. The officer will also inform you that under New Jersey’s implied consent law, you do not have a right to refuse a chemical test and can face additional fines and penalties for your refusal.

Perhaps most importantly, refusing a chemical test does not stop you from being convicted of DUI. Prosecutors may use the testimony of the officer and/or other witnesses in the area to show that you were driving recklessly, too fast, or erratically. The officer also could testify about other signs of impairment when they stopped you, such as an odor of alcohol, bloodshot or glassy eyes, slurred speech, and unsteadiness while walking.

Penalties for Violating the Implied Consent Law

Refusing a chemical test is a separate offense with separate penalties under New Jersey law. Therefore, if you are convicted of DWI, you can receive penalties for the DWI conviction and the refusal to submit to breath testing. N.J.S.A. 39:4-50.4a outlines the penalties for violating the implied consent law as follows:

• First Offense – license suspension until you install an ignition interlock device on your primary vehicle;
• Second Offense – license suspension of one to two years after you install an ignition interlock device on your primary vehicle; and
• Third or Subsequent Offense – license suspension of eight years after you install an ignition interlock device on your primary vehicle.

Furthermore, the court will refer you to the Intoxicated Driver Resource Center (IDRC) for the same period as if you had been convicted of a first, second, third, or subsequent DWI charge.

Finally, you will face a fine of $300-$500 for a first offense, $500 to $1,000 for a second offense, and $1,000 for a third offense. These fines are in addition to any fines that may be ordered for a DWI conviction.

Speak to an Experienced DWI Lawyer Today

Refusing to take a breath test when a police officer asks you to do so during a traffic stop will result in separate penalties from any DWI charge you may face. As a result, consulting an experienced DWI attorney under these circumstances can be critical. At Rosenberg, Perry & Associates, LLC, we are committed to protecting your rights and advocating on your behalf against DWI or other criminal charges that you may be facing. Contact our offices for an appointment today by calling (609) 216-7400 or looking us up online.