When you drive a motor vehicle on a road in the State of New Jersey, you give your consent to the taking of your breath sample when asked by a law enforcement officer. This consent is provided in New Jersey statute N.J.S.A. 39:4-50.2 which provides:
(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50.
(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.
(e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act. [FN1] A standard statement, prepared by the director, shall be read by the police officer to the person under arrest.
Failure to provide a breath test in New Jersey is governed by N.J.S. 39:4-50.4(a) which provides in pertinent part:
a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50, shall refuse to submit to a test provided for in section 2 of P.L.1966, c. 142 (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, 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.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operator’s license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f.) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c. 142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of 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 the provisions of R.S.39:4-50. In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.
According to the above statute, the penalties for failure to provide a breath sample are as follows:
- Fine: $300.00 to $500.00
- Intoxicated Driver Resource Center (IDRC): 12 to 48 hours
- Driver’s License Suspension: Seven (7) months to One (1) year (Can be run concurrent or consecutive to license suspension for N.J.S.A. 39:4-50)
- Ignition Interlock: Mandatory six (6) months to one (1) year required during license suspension and this additional period
- Fine: $500.00 to $1,000.00
- Intoxicated Driver Resource Center (IDRC): In accordance with treatment classification
- Driver’s License Suspension: Two (2) years (Must be consecutive to any license suspension imposed by N.J.S. 39:4-50)
- Ignition Interlock: One (1) to Three (3) years mandatory required during license suspension and this additional period.
Third or Subsequent Offense:
- Fine: $1,000.00
- Intoxicated Driver Resource Center: In accordance with treatment classification
- Driver’s License Suspension: Ten (10) years (Must be consecutive to any suspension imposed by N.J.S. 39:4-50)
- Ignition Interlock: One (1) to Three (3) years mandatory during license suspension and this additional period.
If you or a loved one has been charged with drunk driving (DWI) or refusal to submit to a breath test in New Jersey, contact any of our offices for immediate assistance at (973)971-0030.