Legitimate Reasons for Refusing a Breath Test

In New Jersey, you are required to submit to a breath test when you’ve been arrested for a DWI. It’s called the implied consent law. You gave your “implied consent” to breath testing if arrested for drunk driving when you received your driver’s license. A police officer can charge you with a violation of N.J.S.A. 39:4-50.4a or 39:4-50.2 (refusal to submit to chemical testing) if you failed to abide by the implied consent law.

But are there some situations where you can refuse to take a breath test?

No, but it is possible for a police officer to intentionally create a situation where the breath test is refused.

For instance, a New Jersey police officer can look at the screen of the Alcotest 7110 to see if enough air is being provided during breath testing. When there are fewer than 10 asterisks on the Alcotest screen, then that means not enough air was provided for a result to be generated. If the officer tells the individual to stop blowing into the machine before its time, the operator can try to claim that the driver stopped on his or her own before being told to do so. Unfortunately, most drivers will not be in a position to see the screen to be able to tell that this is the case.

What about medical issues that may interfere with one’s ability to provide a breath sample?

If you are asked for a breath sample, but you’re afraid about your ability to provide it, then you should speak up. For instance, if you have asthma, are hyperventilating, or have a smoking habit, you may have difficulty providing a sufficient breath sample. In those situations, you are still required by law to provide the sample. However, by informing the police officer of your physical issues, a defense to a refusal charge could potentially be asserted.

Even if you aren’t able to give a full breath sample, the Alcotest will measure and report the amount of breath that was provided. This is crucial information for fighting a refusal charge. This information shows that you tried to comply with the officer’s request.

When it comes time to fight a refusal charge in court, you can produce other evidence to support your defense. For instance, if you have a diagnosis of asthma, you can produce medical records with this diagnosis or your prescription for an inhaler. Pulmonary or lung capacity tests can be done to determine if it would have been difficult or impossible to provide the required 1.5 liters of breath. An expert pulmonologist report can be an important tool for convincing a prosecutor to drop a refusal charge.

If you were in a situation where you were very upset and hyperventilating, then this should be noted on the police report and may have been recorded by a camera inside the police station. A police officer should provide you with an opportunity to calm yourself before having to breathe into the machine.

Do you feel like you’re the victim of a false refusal charge?

Talk to an experienced DWI attorney about ways that you can fight it. Remember, being charged with refusal is not the same as being convicted. It’s likely there are many possible avenues for your defense, but you need someone who is knowledgeable about DUI / DWI law.

Getting the help you need now may prevent consequences that haunt you for years.