Clients often ask me to explain how a “Refusal” offense works in New Jersey. A Refusal offense is more formally called “Refusal to Provide Chemical Results.” In other words, it’s an offense of refusing to provide breath samples to the police.

Why is there a Refusal offense?

It’s because the State wants you to provide a breath sample to assist in its prosecution. New Jersey has a per se DWI violation, just like all other states in the country. If the police can obtain a blood alcohol level from you of 0.08% or higher, you are considered legally impaired regardless of whether you feel buzzed, drunk, or impaired at all. The per se violation reflects our government’s determination that people who drive at or above that blood alcohol level are too drunk to drive.

As you can see, the BAC reading is very important. The State’s case is much easier if they have a BAC of .08% or higher. On first blush, you would think it would be appropriate to refuse to provide breath because the absence of a BAC makes the States’s case harder to prosecute. However, if you refuse to provide breath to the police, you will be separately charged with the Refusal offense. You will also likely be charged with the DWI in NJ as the State will attempt to prove your impairment without a reading and also your refusal to provide breath at the station–two separate things.

What Does The State Have to Prove for a Refusal Conviction?

They must establish probable cause that you drove the vehicle. This does not mean that the police have to see you drive the vehicle. They only need to establish that it is more likely than not that you drove the vehicle. This proof can be established by your admission that you drove the car, or by an eyewitness that saw you drive the car. If there is probable cause to believe you drove and probable cause to arrest you on suspicion of DWI, you will be transported to the police department.

If you are arrested on suspicion of DWI in New Jersey, you are compelled to provide breath samples. New Jersey law requires anyone arrested for DWI to provide breath samples—whether you are from New Jersey, Pennsylvania, or even Alaska. Once at the station, the police will never force the breath tube down your throat. Instead, they advise you that you have been arrested for DWI, that you are legally obligated to provide breath samples, and that if you do not provide those breath samples, you will be separately charged with a Refusal offense. The police officers are required to read a prepared document which lists the Refusal penalties. At the end of that recitation, the police officer will ask the defendant if they will provide breath. If the answer is anything other than an unequivocal yes, the defendant will be charged with a Refusal offense.

Are Refusal Charges Defendable?

Does this mean that the Refusal charges are not defendable? Absolutely not. They are defendable with experienced DWI counsel.

Our New Jersey Supreme Court has long recognized a defense to Refusal charges under the “confusion doctrine.” Here’s how it works: Police are required to Mirandize you if you are arrested for DWI. Police tell you that you have the right to remain silent and that anything you say can be used against you. Many people who have little experience with law enforcement will hear this instruction and then separately hear that they have a legal obligation to provide breath even if you remain silent. Many people get confused by these two competing principles. Yes, you do have the absolute right to remain silent. And yes, you still have a legal obligation to provide breath. You are not providing verbal incriminating evidence when you provide breath. Therefore, breath samples are not covered by your Miranda Rights. Nevertheless, when some defendants are asked to provide breath, they indicate such things as: “I want an attorney,” “I’m confused,” “What are my rights?” “What do you think I should do, Mr. Police Officer?” “I’m not sure what to do.” “I take the Fifth and chose to remain silent.”

All of these responses reflect the defendant’s confusion between their legal obligation to provide breath and their Constitutional Right to remain silent. It can be stressful for lay people in a police department. When there is evidence of confusion by the defendant, we can often use the “confusion doctrine” as a defense to the Refusal charge. We don’t contest that you drove; we don’t contest probable cause for your arrest. We contest that you were so confused as to your legal obligations that you could not properly consent to breath testing. It can be a successful defense in the right scenario.

How Serious is a Refusal Charge?

Refusal charges can be serious. It is entirely possible that you can be convicted of a DWI offense based on field observations and also convicted of the Refusal offense if you do not provide breath at police headquarters. The judge has the discretion to run the sentences for the DWI and the Refusal either consecutively or concurrently. Consecutive sentences mean you serve the DWI penalties and then the Refusal penalties one after the other. That is not a good result.

Under New Jersey’s current DWI/Refusal statute, a Refusal requires you to pay $300.00-$500.00 in fines and install a miniature breathalyzer (Ignition Interlock Device) on your car for 9 to 15 months after your conviction. The interlock device costs approximately $100 a month to rent. It also requires you to blow into the device to start the car. If your blood alcohol level is 0.05% or higher, the car will lockout for an hour, and you will be unable to start it. In addition, an interlock device will require you to provide breath samples during your trip to confirm that you are not drinking and driving. All of the data on the interlock devices is collected and downloaded by the installer. You are required to go back to court and will likely suffer additional penalties if there are multiple violations in the final month of the interlock use. It is safe to say that Refusal offenses are serious charges. If you are charged with such an offense, please contact our office so we can discuss a vigorous defense.