Refusal to Submit to a Breath Test in New Jersey

N.J.S.A. 39:4-50.4a · DWI, Refusal & Alcohol/Drug Driving Offenses

What the law says

This section applies when a person arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 refuses, upon request, to submit to the test provided by section 2 of P.L.1966, c.142. It establishes motor-vehicle operating forfeitures, fines, and related requirements based on whether the refusal is a first, second, or third or subsequent offense.

Motor vehicle offenses like this are heard in the municipal court where the ticket was issued. A motor vehicle conviction isn't a criminal record, but it can bring fines, MVC points, surcharges, license suspension, and higher insurance costs.

What the statute covers

Key rules in N.J.S.A. 39:4-50.4a that the State relies on:

How the charge is graded

• If the refusal was in connection with a first offense under this section, the person shall forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates.
• If the refusal was in connection with a second offense under this section, the person shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates.
• If the refusal was in connection with a third or subsequent offense under this section, the person shall forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates.

Penalties in the statute

• For a first offense, a fine of not less than $300 or more than $500.
• For a second offense, a fine of not less than $500 or more than $1,000.
• For a third or subsequent offense, a fine of $1,000.
• For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under R.S.39:4-50 arising out of the same incident.
• For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under R.S.39:4-50.
• A person whose operator’s license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center and shall satisfy the center’s requirements for refusal to submit to a test applicable to a commensurate first, second, third, or subsequent offense, or be subject to the same penalties as such a person for failure to do so.
• A person convicted of operating a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug, permitting another person under the influence of such a drug to operate a motor vehicle owned by the person or under the person’s custody or control, or operating a commercial motor vehicle under the influence of a controlled substance shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than six months.

MVC points and surcharges

• MVC insurance surcharge: $1,000 a year for three years ($3,000 total).
• Collecting 6 or more points within three years brings a surcharge of $150 plus $25 for each additional point, and 12 or more points leads to a license suspension.

Other rules that can matter

• A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction constitutes a prior conviction under this section, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.).
• The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause, whether the person was placed under arrest if appropriate, and whether the person refused the test upon the officer’s request. If these elements are not established, no conviction shall issue.
• Notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement under this section is authorized under the appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes or offense under Title 2C of the New Jersey Statutes.
• Subsection b is deleted by amendment, P.L.2019, c.248.

Common defense strategies

Every case turns on its facts, but defenses we often explore include:

• Lack of reasonable suspicion for the stop
• Alcotest calibration, 20-minute observation, and operator certification issues
• Field sobriety test administration and medical conditions
• Discovery of video, dispatch, and maintenance records

What to do right now

1. Don't pay the ticket online. Paying is a guilty plea.
2. Check your driver history abstract so you know your current points.
3. Keep the summons and write down what happened at the stop.
4. Tell your lawyer if you hold a CDL or already have points or suspensions.
5. Call before your court date. Many tickets can be resolved without you missing work.

How we help

Edward G. Appel has defended New Jersey clients since 1988 in municipal and Superior Courts in all 21 counties. We review the discovery, look for weaknesses in the State's case, file motions where they're warranted, and push for dismissals, downgrades, or diversion before you face a trial. Call 856-823-1117 for a free, confidential consultation about your Refusal to Submit to a Breath Test charge.

Related charges

• Driving While Intoxicated (DWI) →
• DWI in a School Zone →
• Open Container of Alcohol in a Vehicle →
• Possession of CDS in a Motor Vehicle →

Sources

• N.J.S.A. 39:4-50.4a on Justia (2024 New Jersey Revised Statutes)
• NJ MVC points schedule
• NJ MVC surcharges

Statute summaries are based on the 2024 compilation of the New Jersey Revised Statutes. Laws change, so confirm the current version with counsel.

Disclaimer: This page is general information about New Jersey law, not legal advice, and doesn't create an attorney-client relationship. Prior results don't guarantee a similar outcome.