Breathalyzer Test – Should You Take It or Refuse?

Chances are if you make a habit of drinking and getting behind the wheel, sooner or later you are going to get pulled over. Once you have been pulled over, you will be asked to take a roadside sobriety test. This typically involves the officer observing you as you walk and turn, balance on one leg and visually track an item. Should the sobriety test result in your arrest for DWI, the officer will request that you take a breathalyzer test to measure your blood alcohol content or BAC.

How a Breathalyzer Measures BAC

When you drink, the alcohol is absorbed into your bloodstream and distributed to various tissues.  Alcohol experiences few barriers and during its distribution and can go anywhere in your body in equal concentrations. One of the areas of the body it ends up in is the lungs.

The breathalyzer is a device that can measure the amount of alcohol in your lungs when you breathe into it. One sip of a cocktail or single swallow from a beer before taking the test may make your breath smell as if you have been drinking, but the breathalyzer would not show that you were intoxicated.

The reason for this is that the breath brought up from your lungs would not contain alcohol absorbed from your bloodstream. Because the alcohol content of air in your lungs accurately reflects the alcohol content in the bloodstream, the breathalyzer is effective in determining the BAC of the driver and if they are intoxicated.

Breathalyzer Test - Should You Take It or Refuse?

Can You Refuse the Breathalyzer Test ?

If arrested for DWI, New Jersey requires a breathalyzer test, as do most states.  New Jersey’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your breath for the purpose of determining your BAC.  

The test must be taken at the time of your arrest. Your first instinct may be to refuse to take the breathalyzer test in an effort to not incriminate yourself. Should you refuse the test the officer can not make you take one. They may also request a blood or urine test but again, you can not be forced to take either test.

Are There Penalties for Refusal of a Breathalyzer Test?

Refusing to take a breathalyzer test comes with some significant penalties and fines in New Jersey.  Many other states have similar penalties and fines. These should be considered before making the decision to refuse the test.

An initial refusal will result in the a suspension of your license for seven months and a fine of $300 to $500.

A second refusal will result in a two year suspension of your license and a fine of $500 to $1,000.

A third refusal will result in a ten year suspension of your license and a fine of $1,000.

Additionally, if your refusal takes place after you have been arrested for a DWI when driving on school grounds, through a school crossing, or even within 1,000 feet of a school, the penalties are doubled.

Breathalyzer Test - Should You Take It or Refuse?

If You Refuse, is a Conviction Still Possible?

Many think that by refusing the breathalyzer or any other test that there will be no solid proof that they were intoxicated while driving. Without proof there can be no conviction, right? Not necessarily.

Even though the consequences for a DWI conviction are more severe than those for refusing a breathalyzer or any type of BAC test, there is no guarantee that a refusal will prevent a conviction.

You could still be found guilty of a DWI. It can be argued that your refusal was based on the fact that you knew you were intoxicated and would fail the test. The observations of an experienced officer prior to pulling you over and during arrest can contribute to a conviction. Also, many police cruisers are now equipped with dash cams which can easily document intoxicated behavior.

The consequences of drinking and driving can range from significant fines and penalties to the loss of life. When arrested for a DWI, ultimately the decision to take or refuse a breathalyzer test is yours to make. Just be aware of the the possible consequences before making that decision.  No matter what you decide, once you’ve been arrested for DWI, you should obtain an experienced DWI attorney.

Thomas V. Campo has been studying the law since 1990. With over 20 years of experience in criminal law, Tom has worked in a multitude of superior and municipal courts and has in depth knowledge on a wide array of criminal and traffic offenses including driving while intoxicated. Contact his office for a free consultation.


Recent Posts