New Jersey’s Implied Consent Laws and Refusing Alcohol Testing

Police often use breath tests in DWI (driving while intoxicated) investigations to determine the driver’s blood alcohol concentration (BAC). The results of the breath test can be used by the prosecutor to prove a DWI in court. A DWI may be harder to prove without a valid BAC measurement, but refusal of a breath test will result in additional penalties for the driver.

Implied Consent

New Jersey’s “implied consent” law states that any person who operates a motor vehicle in New Jersey is deemed to have given consent to chemical testing of the driver’s breath. Unlike other states, New Jersey’s implied consent law does not include blood or urine tests. Additionally, a New Jersey test refusal is not handled administratively (through the Department of Motor Vehicles), but instead by the magistrate court.

A driver who’s cited for refusal will face penalties if the magistrate judge determines—by a preponderance of the evidence (more likely than not)—all of the following:

• the arresting officer had probable cause to believe the driver was driving (or in actual physical control of a vehicle) while under the influence of alcohol or drugs
• the driver was arrested for a DWI
• the officer informed the driver of the consequences of refusal
• the officer requested a breath test, and
• the driver refused to submit to a breath test.

Having found these true, the judge will order the driver’s license suspended and will issue fines.

Consequences of Refusal

Drivers who refuse to submit to a lawfully requested breath test will face the following penalties based on the number of prior DWI or refusal convictions the driver has.

	1st Offense	2nd Offense	3rd Offense
License revocation	7 to 12 months	2 years	10 years
Fines	$300 to $500	$500 to $1,000	$1,000

All license revocation periods will generally run concurrently (back-to-back) with any other DWI-related revocation periods (a DWI conviction will also result in license revocation). However, for a first offense, the judge can order they run the suspensions together (at the same time).

Treatment. The judge will also order the driver to enroll in and complete the Intoxicated Driver Resource Center program. A first offense requires 12 to 48 hours in the center, while the required hours for subsequent offenses will depend on the results of the alcohol and drug screening and evaluation.

Ignition interlock device (IID). After license reinstatement, the driver will be required to maintain an IID on all driven vehicles for six to 12 months. Any subsequent offenses will carry an IID requirement of one to three years.

Insurance surcharge. A refusal violation will require the driver to pay an annual surcharge for three years after the violation. The surcharge for a first or second offense is $1,000 and for a third offense is $1,500.