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The Law Offices of Jonathan F. Marshall

Morris County

NJ Criminal Defense Lawyers


Our team of skilled attorneys includes former County and Municipal Prosecutors with over 100 years combined experience and is available to assist you immediately.

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Refusal to Submit to Breath Sample

Morristown NJ Refusal Lawyers

Refusal To Submit Breath Test Attorney in New JerseyIn Morris County, a refusal to submit to a breath test is a serious offense that can have significant effects upon your ability to drive in the state of New Jersey, your ability to maintain gainful employment, and even your ability to avoid incarceration. Whether this is the first, second, or third time that you have been stopped for a DWI related offense, you cannot afford to be without the best representation you can obtain in fighting these charges. The Law Office of Jonathan F. Marshall is experienced Morris County, New Jersey DWI /DUI / Refusal to submit to a breath test defense firm. Our office has been defending individuals charged with driving under the influence, DWI in a school zone, marijuana DUI, aggravated assault and assault by auto charges in towns like Pequannock, Mendham, RockawayDenville, Roxbury, Dover, Mount Olive, Morristown, Boonton and else where through Morris County for the last decade. If you would like to set up a free initial consultation with any one of the eight Morristown NJ DUI defense attorneys, please contact our Morris County office at (973) 309-7050. Now here is some key information with regards to a refusal to submit to a breath sample charge in New Jersey.

Denville NJ Refusal to Submit to a Breath Test Attorneys

Under N.J.S.A. 39:4-50, the state’s statute that governs DWI related offenses, the state has the burden of proving two essential elements to its case, without which no conviction can be returned. These two elements are proof of operation of a motor vehicle and proof of intoxication. Proof of operation is usually easily established by the state. Often, the state will have direct evidence of operation, i.e., the officer will have witnessed the defendant operating the motor vehicle before making the traffic stop. Additionally, often, a defendant will admit to the officer that they operated the motor vehicle. A third way the state may prove operation is through the use of circumstantial evidence, meaning that the manner in which the officer came into contact with the defendant creates an inference of operation such that the state is entitled to a presumption of operation. Usually, this is the case where the defendant has been in an accident or is sitting in their car on the side of the road. The officer has not witnessed the defendant actually driving, however, the car could not be where it is if someone had not driven it. Lastly, often the state need not prove actual operation, but only the intent to operate the vehicle. If for instance, you placed the keys into the ignition and the car could actually be driven, i.e. it wasn’t broken, then the state will be able to satisfy their burden under this element.

The more disputed element in DWI cases is proof of intoxication. Under N.J.S.A. 39:4-50.4(a), however, the state need not prove intoxication where a person refuses to submit to a breath test. Therefore, essentially, then in cases where the defendant refuses to submit to a breath test, the state need only prove operation of a motor vehicle to gain a successful conviction.

What are the Penalties for a Refusal in New Jersey?

If, then, the state can prove operation and you have refused to submit to the breath test, the sentencing for this offense reverts back to the framework established in the state’s primary DWI statute, meaning that the offense will be treated as any other first offense, second offense, or third offense DWI. A first offense refusal DWI is unique in that unlike a regular first offense, it carries with it a suspension of your license for 7 months to a year, because there is no way to show that your BAC was under .10%. A second offense carries with it a suspension of your license for 2 years. A third or subsequent carries with it a suspension of your license for 10 years. Additionally, all of these offenses carry with them heavy fines, the possibility of community service, installation of an ignition interlock device, and even the possibility of incarceration.

Morris County NJ Refusal to Submit to a Breath Test Lawyer

Do not think, however, that there is nothing that can be done for you in a refusal DWI case. Here at the Law Offices of Jonathan F. Marshall, we have perhaps more experience than any other firm in the state at defending against DWI charges. So please, if you or someone you loved has been charged with a refusal offense in Morris County, do not hesitate to contact one of our offices today for a free consultation with an experienced attorney about the particulars of your refusal case.