Refusing a Breath Test in New Jersey: Penalties and Defenses

After a DWI arrest in New Jersey, the officer will take you to the station and ask you to give breath samples. If you decline, or don't give proper samples, you'll likely face a separate charge: refusal to submit to a breath test under N.J.S.A. 39:4-50.4a.

Many drivers assume refusing helps, because there's no breath reading. In New Jersey, though, refusal carries its own penalties that can match or exceed a first DWI. It's also frequently charged alongside DWI. Here's what the State has to prove, what the current penalties are, and where the defenses are.

Implied consent: why refusal is an offense

By driving on New Jersey roads, you're deemed to have consented to breath testing after a lawful DWI arrest. That's the implied consent law, N.J.S.A. 39:4-50.2. The law also requires the officer to read you a standard statement prepared by the Motor Vehicle Commission. The statement explains the consequences of refusing.

The refusal charge relates to the formal breath test after arrest, usually given on an Alcotest device at the station, not the field sobriety tests at the roadside.

What the State must prove

In State v. Marquez, 202 N.J. 485 (2010), the New Jersey Supreme Court listed four elements of a refusal conviction:

1. The officer had probable cause to believe you were driving, or in actual physical control of a vehicle, while under the influence of alcohol or drugs.
2. You were arrested for DWI.
3. The officer asked you to submit to a breath test and informed you of the consequences of refusing.
4. You refused.

The burden is proof beyond a reasonable doubt

The refusal statute itself says the court decides these elements by a "preponderance of the evidence." But in State v. Cummings, 184 N.J. 84 (2005), the Supreme Court held that because refusal is a quasi-criminal matter, the State must prove each element beyond a reasonable doubt.

The warning must be given in a language you understand

In Marquez, the Court reversed a refusal conviction because the officer read the standard statement in English to a driver who didn't understand English. The Court said reading the statement in a language the driver doesn't speak "is akin to not reading the statement at all."

Later decisions have kept Marquez to that narrow situation, a real language barrier. Claiming you were too intoxicated to understand isn't a defense.

Current refusal penalties

New Jersey's 2019 DWI reform, P.L. 2019, c.248, replaced most long license suspensions with ignition interlock devices. It was amended by P.L. 2023, c.191. Under the current version of N.J.S.A. 39:4-50.4a:

Ignition interlock

Under N.J.S.A. 39:4-50.17, the court must order an interlock device in the vehicle you most often drive:

• First refusal: installed during the forfeiture period, and for 9 to 15 months afterward.
• Second or later refusal: installed during the forfeiture period, and for 2 to 4 years afterward.

The device can't be removed at the end of the term unless the vendor certifies that you didn't have more than one failed or skipped test in the final 30 days, and that you kept up with maintenance and calibration. If you fall short, the court can extend the installation for up to 90 days.

Other consequences

• Intoxicated Driver Resource Center (IDRC). A person whose license is revoked for refusal is referred to the IDRC and must meet its requirements.
• MVC insurance surcharge. The MVC imposes a surcharge of $1,000 a year for three years for a refusal conviction.
• DWI and refusal together. For a first offense, the license penalty for refusal can run at the same time as, or after, a DWI penalty from the same incident. For a second or later offense, it must run consecutively.
• Out-of-state priors count. A conviction for a substantially similar offense in another state counts as a prior for refusal sentencing.

The interlock rules have an end date

The interlock-based penalty structure from the 2019 and 2023 laws is set to expire on January 1, 2029, unless the Legislature extends it. If it isn't extended, the statutes return to the earlier text. Check the law in effect on the date of your offense.

Common defenses to a refusal charge

Every case depends on its facts, but defenses we often examine include:

• No probable cause. If the officer lacked probable cause to believe you were impaired, the refusal charge fails even if you declined the test.
• Problems with the standard statement. Was it read completely, and in a language you understand? Body-worn camera and station video often settle this.
• What actually happened. Some drivers try to give samples but can't produce an adequate breath sample. Medical conditions, such as asthma or other respiratory problems, and the device records can matter.
• The order of events. The State must prove you were arrested for DWI before the request, and that the request and refusal happened as the statute requires.
• Negotiating the case. Depending on the evidence, it may be possible to resolve the case in a way that reduces license and interlock exposure. Talk to a lawyer before making any decision.

What to do right now

1. Write down what happened at the station while it's fresh: what you were told, in what language, and how many times you were asked.
2. Ask a lawyer to demand the video from bodycams, dashcams, and the station, along with the Alcotest records and the officer's reports. These can be lost if no one asks early.
3. Don't drive if your license has been forfeited, and don't drive any vehicle without a required interlock. Doing so creates new charges.
4. Note any medical issues that affect your breathing and gather your records.
5. Don't plead guilty at your first court date before you understand your options.

How we help

The Law Office of Edward Appel defends DWI and refusal charges in municipal courts across New Jersey. We obtain and review the video and Alcotest records, test whether the officer had probable cause, and check every step of the standard statement against what the law requires. When there's a defense, we try the case. When there isn't, we work to limit your license, interlock, and insurance consequences.

Call 856-823-1117 for a free, confidential consultation.

Disclaimer: This article is general information about New Jersey law, not legal advice, and reading it does not create an attorney-client relationship. Laws change and every case turns on its facts. Call 856-823-1117 to discuss your situation.