Interviewer: So, now we’ll talk about what happens at the police station. You’ve already been arrested and now the situation is different. Will they ask you to do blood, breath or urine test and what happens if you refuse one of those?
Penalties for Refusing the Alco Test
Carl: Well, in the state of New Jersey they’ll more than likely ask you to take a breath test. It’s actually called an alco test, as I mentioned. What the police will have to do is read you a standardized statement, which has very specific warnings, as to what may occur if you don’t take the breath test. You can decline to take it in the state of New Jersey, but you will be charged with a separate traffic infraction of refusal to take the test.
Interviewer: What are the penalties for refusing the chemical test?
No Advantage for Refusing the Alco Test
Carl: Well, they are the same as for a first DWI offense. So, the driver would be facing the seventh month suspension, the fines, and the mandatory ignition interlock device if they are convicted or plead guilty. So, there is no advantage to a refusal. Your can gain in sentencing if you are charged with a refusal on a first offense.
Interviewer: Have you had cases where the person says “I didn’t refuse, I tried to blow and I just couldn’t do it” or “I did blow four or five times and the police said I refused but I didn’t” Do you ever run into that?
Being Unable to Perform the Test Is Different Than a Refusal
Carl: I’ve seen that quite a few times. I’ve actually had a fair amount of success in convincing prosecutors that even though my clients have been charged with the refusal, that they did in good faith try to take the test.
There is a report that’s printed for everyone that takes the breath test in New Jersey. This is because New Jersey requires two valid samples as opposed to one in some other states. In this report you see exactly how many times someone tried to supply a sample.
If because the level of air that’s required to be delivered isn’t achieved, the machine reaches it’s own conclusion. And that will result ultimately in the police officer stopping the test. They won’t go past probably five or six times. However, there could be a malfunction in the machine or the person could simply not be able to muster up enough air to fulfill the requirement of the machine.
Interviewer: I could see if they’re nervous, they’re upset, or maybe they have asthma, or other problems like acid reflux. I’m sure all that can interfere with the proper breath test.
Carl: I would have to agree with that completely.
By Carl Spector