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Refusing a Breathalyzer in New Jersey
N.J.S.A. 39:4-50.4a
Updated on 9/11/2025
Understanding Breath Test Refusal in New Jersey
If you are stopped for suspected drunk driving in New Jersey, you may wonder if you can refuse to take the breath test. The answer is no.
Refusal is a separate offense under N.J.S.A. 39:4-50.4a, with unique penalties. You can be convicted of refusal even if the underlying DWI is reduced or dismissed.
This guide will explain:
- What New Jersey’s implied consent law requires.
- How refusal is defined, with real-world examples.
- Refusal penalties and ignition interlock requirements, including 2024–2025 updates.
- NJ refusal defenses that may apply in refusal cases.
- Special rules apply to CDL drivers, under-21 drivers, and those without vehicles.
- Answers to common questions about refusal charges.
What the Law Says Under the NJ Implied Consent Law
Implied Consent (N.J.S.A. 39:4-50.2)
- By driving on public or quasi-public roads in NJ, you consent to breath testing.
- Implied consent applies to breath only, not to blood or urine tests.
- Before charging refusal, an officer must read the Attorney General’s Standard Statement to the driver.
Refusal Statute (N.J.S.A. 39:4-50.4a)
- Refusal is a standalone offense, even if the DWI charge does not proceed.
- Refusal penalties apply in addition to any DWI penalties.
Ignition Interlock Framework (N.J.S.A. 39:4-50.17 et seq.)
- IID installation is required for all convictions involving refusal.
- MVC oversees vendor compliance, calibration, and reporting.
- 2024–2025 updates: Courts clarified IID credit and program logistics, including the “2-for-1” credit toward suspension if the IID is voluntarily installed.
What Counts as “Refusal” (With Real Examples)
Refusal is broader than saying “no.” Courts have found refusal when drivers:
- Stay silent or do not answer.
- Give conditional or ambiguous responses (“I’ll take the test if my lawyer is present”).
- Delay or show repeated non-cooperation.
- Provide weak or short samples, or otherwise fail to follow instructions.
- Refuse after hearing the Standard Statement, which warns:
“If you refuse to provide breath samples, you will be charged with an additional offense, separate from driving while intoxicated, with mandatory penalties.”
Importantly, there is no right to counsel before deciding whether to submit to the breath test.
Refusal Penalties & IID Requirements in NJ (2024–2025)
Refusal penalties are harsh, mandatory, and separate from any DWI penalties.
Review our guide on DWI penalties in New Jersey.
Review our guide on Alternative sentencing in New Jersey DWI/DUI cases.
First Offense
- $300–$500 fine.
- MVC surcharge: $1,000/year for 3 years.
- 7–12 month license suspension.
- 6–12 months ignition interlock after suspension.
- IDRC required.
Second Offense
- $500–$1,000 fine.
- MVC surcharge: $1,000/year for 3 years.
- 2-year license suspension.
- 1–3 years ignition interlock after suspension.
- IDRC required.
Third Offense
- $1,000 fine.
- MVC surcharge: $1,000/year for 3 years.
- 10-year license suspension.
- 1–3 years ignition interlock after suspension.
- IDRC required.
2024 Court Notice: Voluntary IID installation may count as “2-for-1” credit toward suspension.
2025 Law (P.L. 2025, c.41): Clarified timelines and logistics for refusal-based IID programs.
School Zone Update: New Jersey repealed the school zone DWI enhancement in 2019. However, judges may still consider the presence of children or the location of the stop as aggravating factors.
NJ Refusal Defenses We Explore in Breath Test Cases
Our New Jersey DWI attorneys examine every detail of a refusal charge to identify possible defenses:
- Improper Warning: Officer failed to read the Standard Statement correctly (State v. Widmaier).
- Language Barriers: The Driver did not understand the warning (State v. Marquez).
- Medical Conditions: Conditions such as asthma or COPD prevented the collection of a valid sample.
- Probable Cause Issues: Weak probable cause for stopping, not operating a vehicle, or not on public/quasi-public property.
- Review our guide on DWI checkpoints in New Jersey.
- Equivocal Responses: Mischaracterization of conditional or cooperative responses as refusal (State v. Monaco).
- Breath vs. Blood: Implied consent applies only to breath samples; blood tests generally require a warrant.
- Confusion Doctrine: If drivers receive conflicting or misleading information, confusion about their rights may be a defense.
- Burden of Proof on Prosecutors: The State must prove:
- A lawful stop.
- Probable cause for intoxication;
- Proper reading of the Standard Statement;
- A refusal or failure to provide valid samples.
Plea Negotiation Nuances: First-offense refusal penalties are mandatory; however, limited plea negotiations may be possible in second or subsequent cases.
Special Situations
- Under-21 Drivers: Refusal laws still apply.
- Commercial Drivers (CDL): Refusing can result in CDL disqualification, potentially ending a commercial driving career.
- No Vehicle Ownership: Refusal triggers license suspension and IID obligations even if you do not own a car. The MVC treats the penalty as if an IID were installed.
Permanent Record & Insurance: Refusal convictions stay on your permanent driving record and can significantly increase insurance premiums.
Refusing a Breath Test FAQ: Refusal Penalties in NJ
Refusal vs. DUI / Charge Treatment
Is refusing a breathalyzer worse than a DUI in New Jersey?
Refusal carries mandatory penalties and can sometimes be harsher than a low-BAC DWI.
How is refusal different from a DWI charge?
Refusal is a statutory violation. DWI requires proof of intoxication. You can be charged with both simultaneously.
Implied Consent & Enforcement
What is implied consent in NJ?
By driving, you automatically agree to submit to breath testing based on probable cause; refusal violates that agreement.
Can police force a breath test?
No. But legally, refusing still triggers immediate penalties, despite the lack of physical compulsion.
Burden of Proof
What must the state prove for a refusal conviction?
They must prove a lawful stop, probable cause for DWI, issuance of the Standard Statement, and that you either refused or failed to provide a valid sample.
Penalties & Long-Term Impact
What are refusal penalties in NJ?
They escalate with repeat offenses. A first offense results in a 7–12 month suspension, fines, an IID, and IDRC. They increase with each offense.
Will refusal affect my insurance or record?
Yes—refusal convictions remain on your driving record, often leading to significant insurance premiums.
Plea Bargaining Rules
Can I plea bargain a refusal charge?
Not for first-time offenses, which carry mandatory penalties. But a plea may be possible in repeat cases.
Common Legal Defenses
What defenses are available for refusal?
Possible defenses include procedural errors, language misunderstandings, medical issues, confusion, unclear communication, and challenging probable cause.
Contact us today
Call for Legal Help on Refusing a Breath Test in New Jersey
Refusal charges in New Jersey carry serious consequences, ranging from lengthy suspensions to mandatory ignition interlock devices. But there are defenses.
Facing a refusal charge in NJ? Don’t face it alone.
Our attorneys are Alcotest-certified, trained in SFST/DRE, and have defended thousands of DWI cases across New Jersey.
Call us today at (908) 561-5577 or contact us. Your initial consultation will take place over the phone, and you can schedule an appointment at one of our office locations across New Jersey.
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