New Jersey Appeals Ruling: Breathalyzer Refusal Counts For Sentencing

Recently, the New Jersey Appellate Courts ruled on an issue that had long gone the other way. The question raised was whether a prior breath test refusal can be counted as an offense in considering the sentence for a subsequent DWI conviction.

The lower court had not taken into account a prior conviction, as well as, a prior breath test refusal based on a precedent that had been established in New Jersey almost thirty years earlier. Therefore, the lower court sentenced the defendant as a first-time offender and discounted both of the earlier offenses in handing down a sentence.

In a departure from the established New Jersey precedent on the subject, the Appellate Division ruled that the prior breath test refusal should have counted in determining the defendant's sentence under the New Jersey DWI statute. In this case, the defendant who was sentenced as a first-time offender, is now subject to an additional sentence under the statute due to the previous breath test refusal from 2006. Again, this marks a pretty substantial change in New Jersey DWI sentencing.

In a nutshell, the Court concluded that the statute doesn't make an express distinction between a prior DWI conviction and a prior refusal. Therefore, the Court was not willing to "read in" a distinction despite the prior precedent to the contrary. The Court focused on the key language including the terms "violation" and "offense" as opposed to violations under this section, which is not included in the statute.

With this ruling, individuals that are arrested for DWI in New Jersey need to be aware of the potential consequences. Refusal of a breath test may be used to determine which sentencing rule is used in your case. This is yet another example of why talking to a criminal defense lawyer first, is critical to making the right decision.

In New Jersey, drunk driving and refusal carry some of the nation's toughest penalties. If you are convicted, you may lose your license, face stiff penalties and even go to jail. Call a seasoned NJ dui lawyer today. Contact our office online today. Our NJ dui lawyer will do everything he can.