Friday, December 28, 2012

Failure to Give Appropriate Breath Test Refusal Warning Can Result In Acquittal in NJ

Refusal to give a breath sample in a DUI matter carries substantial penalties including mandatory minimum 7 month loss of driving privileges and fines up to $500 for a first offense to a minimum 10 year loss of license to $1,000 fine for a third or subsequent offense. Additionally, if you refuse to submit a breath sample, you may still be convicted of DWI based on the officer's observations while you perform field sobriety tests. In the event you elect not to submit a breath sample into the Alcotest machine and are still charged and convicted with DWI, you will face a loss of license for each offense. Due to the severity of the penalties for refusal being akin to those for the underlying driving under the influence charge, the legislature has structured the warnings given in the event of a refusal to be of the same stricture as those issued for driving while intoxicated. In the recent case of State v. O'Driscoll, Harding Municipal Court Judge Gary Troxell found O'Driscoll guilty of refusal, DWI and possession of an open container of alcohol and Morris County Superior Court Judge Ironson affirmed the conviction on appeal. The Appellate Division overturned the conviction on the grounds that failure of arresting officers to read the current refusal warnings did not satisfy the intent of the legislature in the preparation and requirement of the specific statement regarding the consequences of refusal to submit to breath tests. DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges, or refusal to submit to a breath test, you should seek an experienced attorney to assist you in your defense. Selecting an attorney who knows your rights and is able to avoid a conviction based on mistakes by officers in their attempt to prove your guilt is the difference between keeping or losing your license, as well as a host of other problems that come with a refusal conviction in NJ. If you are charged with refusal to submit to the Alcotest or DUI contact an attorney immediately to protect your rights. For more information on Driving While Intoxicated or other serious municipal court/traffic matters in New Jersey visit This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

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