Can Someone Refuse A Breath Test?

Refusing to submit to a breath test in New Jersey would be an additional infraction and charge as opposed to what they would do in other places where the person may or may not be protected by the Fifth Amendment, which would allow the person to refuse. In New Jersey, the person would not have that right to refuse.

Many people think they do not really have to submit to the breath test when they are asked to submit to it although at the end of the day they do actually have to submit to it. They get so caught up in the stress of the moment that they ask to speak to their lawyer and they don’t listen when the officer actually reads them the piece of paper that states at least twice and is mandated by the state that the person would not have the right to speak to a lawyer before submitting to the breath test. The person could ask for the lawyer all they wanted but they would still have to submit to the breath test.

Most people just ask to speak to their lawyer when the officer asked them if they understood they would be charged with refusing if they did not submit to this breath test. The police officer would tell the person they were trying to explain to them that they would not have the right to counsel prior to submitting to this breath test. They would tell the person they could call their attorney in a minute, but they would have to do the breath test first.

This ends up getting people into more trouble because it would just be easier for me to deal with it as an attorney. It would be easier for me to deal with a breath test with an actual result than it would be to deal with a refusal because with the refusal would come an inference of guilt. Whether or not it would be appropriate, the person would have to have a reason they refused.

Do You Ever Have Cases Surrounding False Refusal?

Absolutely. This does happen frequently and it is something that we have to be careful about. I handled a case last year where a police officer gave my client a charge for refusing to submit to a breath test, but the person did not understand a word of English. It is now the law for police officers to have to use a translator if the person indicated they did not understand what the officer was saying.

This individual did not speak English and did not understand what was being asked of him. They told him he did not have the right to say no and he would have to submit to the test and they asked his consent, but the person only said “No, no, no, lawyer, lawyer,” because he did not understand what they were saying.

I had another case where the person was passed out on the floor of the cell, so if he was passed out then he could not have possibly confessed to anything while he was asleep.

How Are Issues Like This Handled?

In cases like these, we have to first go through all the discovery of the event. Very often people say they honestly did not remember what happened that day, or they were so confused on that day that they did not even remember whether someone had even asked for their consent. At that point we tell them the police had to have asked them the question because they had a piece of paper showing that the person had refused and that is showed they had read it to the person but they had declined to answer the question.

Sometimes the reason people decline to answer the questions is because they are not awake or they do not understand what is being read to them. We have to be very careful to try and catch that so we would look at the videos or we would look into what the client said. If the client really did not remember at all what happened, then there may be a very good chance they were not awake and did not understand what was being read to them.

It is a little bit of a conundrum in terms of legality, because if someone was so inebriated that they could not focus on what was being said to them, then it would be counterintuitive to assume that we would have to ask them to consent to a breath test so if they do not consent, they would have committed another offense. Involuntary intoxication would unfortunately not be a defense to that, so it can become an issue.

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