Why Can I Be Punished for Not Providing Evidence?
Posted by Scott Gorman - September 14, 2018

In New Jersey, once you drive your car on a public road or in a place like a commercial parking lot, you have given your consent to provide breath samples if a police officer believes you might be drunk. This is what it means to give “implied consent,” and like many states, New Jersey has a strict implied consent statute on the books.

Of course, almost no one realizes that they have consented to give breath samples when they start their car. So, under New Jersey law, before a police officer asks you to provide breath samples, he or she must first read a statement that describes the penalties you could face if you refuse. If the arresting officer fails to read this statement, you should not be punished for revoking your implied consent.

Specifically, among other things, under N.J.S.A. 39:4-50.2, the arresting officer must inform you that:

  • You are entitled to receive a copy of your breath test results upon request; and,
  • You have the right to have a second breath test (or blood or urine test) taken by a doctor of your own choosing.

What New Jersey’s Implied Consent Law Means for Your Drunk Driving Case

Even though police officers are required to advise motorists of the consequences of refusing, New Jersey’s implied consent law may still seem pretty unusual. How is it that you can be punished for not participating in an investigation into your own alleged wrongdoing? How is this any different from penalizing you for exercising your right to remain silent?

In 2013, the United States Supreme Court addressed the question of whether a nonconsensual, warrantless blood draw from a person suspected of driving drunk violated the driver’s constitutional protection against unreasonable searches. The Court held that under such circumstances, the police would need a warrant before conducting the blood draw even though the concentration of alcohol in the driver’s bloodstream would dissipate over time. Three years later, the Court considered whether similarly-situated drivers could be punished for refusing to give their consent to provide breath samples. A sharply divided Court ruled that drivers could, in fact, be lawfully compelled to provide samples of their breath under statutes like New Jersey’s implied consent law because breath tests are far less intrusive than blood tests.

In short, if the police do not have a warrant, you cannot be penalized for refusing to provide a blood sample. However, you can be punished for refusing to give a breath sample. New Jersey’s penalties for a first-time implied consent violation include:

  • Seven to twelve-month driver’s license suspension
  • Thousands of dollars in fines, fees and surcharges
  • A minimum of twelve hours of education at an Intoxicated Driving Resource Center (IDRC)

Remember, these are the penalties for refusing consent, not for driving drunk. As a result, you can be convicted and sentenced for an implied consent violation even if you are not ultimately found guilty of driving under the influence (DUI) at trial.

Speak With Hackensack, NJ DUI Lawyer Scott Gorman

If you refused a breath test and are now facing charges in Essex County for an implied consent violation and DUI, attorney Scott Gorman can help. To discuss your case in a free and confidential consultation, call 201-489-9199 or request an appointment online today.

Published in Categories: DUI / DWI