Breathalyzer Tests


An individual who is arrested for driving while under the influence (DUI) is required to take a Breathalyzer test under New Jersey law. When an individual receives a New Jersey State driver’s license, he or she implicitly consents to chemical tests. Chemical tests may include providing blood, breath or urine samples to police officers or to physicians at a hospital. Under New Jersey’s implied consent law, an individual who has been lawfully arrested for driving while intoxicated consents to taking a chemical test. Because of this implicit consent, an individual is required to take a Breathalyzer test if stopped by a police officer for suspicious driving. While a police officer does not need a Breathalyzer test to convict a person of a DUI, it is likely the officer will make the request. An individual who refuses to submit to a Breathalyzer test may subsequently be charged with a DUI and refusal offense.

Before administering a Breathalyzer test, a police officer is required under New Jersey law to advise the individual of the penalties that accompany refusal to comply with the officer’s orders. Among other things, the individual has no legal right to have an attorney or personal physician present while the Breathalyzer is being conducted. In addition, a court may issue a separate summons to an individual who refuses to submit to a breath test. In such a case, a court will impose several penalties on an individual who is guilty of refusing to submit to a Breathalyzer. A guilty individual will lose his or her license for a period of no less than 7 months. Moreover, a minimum $300 fine will be imposed. The license suspension and fine penalties for a refusal to submit to a Breathalyzer are independent of any other suspensions or fines in conjunction with a DUI charge.

Refusing to submit to a Breathalyzer can carry the same convictions as a DUI charge. For first-time DUI offenders, the following penalties may be imposed:

  • License suspension of 7 months to 1 year,
  • Fines and court costs,
  • Ignition interlock device installed in vehicle for 6 months to 1 year,
  • Increased insurance premiums, and
  • Mandatory alcohol education program at the New Jersey Intoxicated Driving Resource Center

Because a DUI conviction carries substantial penalties, it is important to avoid any additional penalties arising from a refusal to submit to a breath test.

Under New Jersey law, refusal to submit to a Breathalyzer does not mean an outright refusal. Generally, anything other than an explicit agreement constitutes a refusal by law. For example, an individual who does not give a clear answer or conditions consent on a certain occurrence is considered to have refused to comply. Likewise, silence is considered refusal. A police officer will advise an individual of this fact before conducting the test.