Blew into the Breathalyzer and Still Charged with Refusal

First, the machine used in New Jersey for breath tests is the Alcotest. The breathalyzer was the former device that is no longer in service. However, one could make the argument that the Alcotest is no more reliable.

Regardless, refusal has nothing really to do with the machine. A refusal is charged when a suspect under arrest for suspected DWI refuses to blow into the tube. But the inquiry doesn’t end there. In order for the state to prove a refusal, it must show that there was probable cause for the arrest, that the police complied procedurally by advising the suspect of the penalties for refusal and that the defendant knowingly refused.

This becomes more complicated than one would imagine. Rules are hard for people to follow. Police aren’t immune to this. In fact, police frequently have a hard time following the rules. Whether or not they tell the truth about that on the stand is another story. But I digress.

When someone blows into the machine and is still charged with refusal…well now we have something. We get to that gray area of police officer judgement call. If you blow into the machine, it certainly cannot be considered an unequivocal refusal. That triggers another set of rules for police to follow. Secondly, if you are charged with refusal after you attempted to blow, then the state is going to have a hard time proving that you knowingly refused. All the elements of the state’s case must be proved beyond a reasonable doubt and this sort of situation makes it a lot more difficult.

Maybe we beat the refusal. Now comes the DWI. But after we beat the refusal there is no downside to going to trial on the DWI. That, of course, is assuming the refusal is not dismissed as part of a “resolution”. But in most cases, the state is unwilling to do so. Running the suspensions concurrent is usually the best pretrial offer, which is OK, but I’d prefer a trial and take our chances.

Refusal offenses are tough to beat, but under certain circumstances, a refusal charge can be overcome. Additionally, there is current issues before the NJ Superior Court that are affecting just about all  pending refusal cases, but the window may close soon. Regardless, no one should take a seven month loss of license lying down.


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