Even if you’re not being pulled over for suspicion of drinking and driving, it’s not unusual for the police officer, in the first few moments of the traffic stop, to inquire if you have been drinking. If you admit that you have, or the officer has any other reasonable belief that you may be impaired, the officer will typically ask you to submit to a blood alcohol test. What are your rights? Can you refuse to take the test? What happens if you do?

Implied Consent in New Jersey

The legal doctrine of implied consent governs your rights, as well as the consequences, when you have been requested to provide a blood alcohol sample while driving. Under the principle of implied consent, the police officer technically does not have to obtain your permission or consent to test your blood alcohol content (BAC). The officer will not need to show that you affirmatively or verbally agreed to the test—because consent is implied, that will be assumed.

The officer may not force you to take the test, and cannot draw your blood involuntarily. However, the request for the BAC sample is more of an instruction/order than request for participation.

Under the theory of implied consent, by getting behind the wheel of a car, you impliedly agree to provide a blood alcohol test when a police officer (who has reasonable cause) requests one. If you refuse, you will automatically have your drivers license suspended for a minimum of 12 months (for a first offense). A second refusal will lead to a two year suspension and a third refusal will result in a 10 year suspension.

Contact Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call me at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

After a long day at work, you stopped at your favorite watering hole and had a couple beers with your pals. As you’re headed home, a police officer notices that you have a tail light that’s not working, or you don’t come to a complete stop at a light. If the officer pulls you over, can he or she ask you to submit to a blood alcohol test, even if you weren’t driving erratically and there are no visible signs of intoxication? Does the law place any restrictions on when and whether you can be required to take a blood alcohol content test?

As the law is currently construed in New Jersey, before a police officer can require that you submit to a blood alcohol test, one of two things must happen: the officer must either get your verbal consent to a test, or the police officer must have a warrant. That’s because drawing your blood is considered a search, covered by the protections found in the 4th Amendment to the U. S. Constitution.

That’s not to say, though, that there won’t be consequences if you refuse to submit to a blood alcohol test. While the refusal to take the test cannot be construed as evidence of guilt, you can face automatic suspension of your driving privileges. New Jersey adheres to the law of implied consent, which means that, by getting behind the wheel, you automatically consent to a blood alcohol test if one is requested. As a practical matter, it’s generally better to voluntarily submit to the BAC test and try to challenge the validity of the findings, if necessary.

A police officer cannot “force” you to take a blood alcohol test. Nonetheless, the officer may obtain a “telephonic warrant,” where a judge grants a verbal warrant based on the circumstances.

Contact Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call me at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

When you’ve been pulled over while driving, one of the first questions you’ll often face from the police officer is “have you been drinking?” If you answer affirmatively, the officer will customarily ask you to submit to either a field sobriety test or a blood alcohol test. Can you refuse to take a breath test? What are the consequences if you do?

The Concept of Implied Consent

Under New Jersey law, the doctrine of implied consent applies when you are pulled over in a traffic stop. The implied consent law stipulates that, should you be lawfully detained by a law enforcement officer who has probable cause to believe that you are under the influence of alcohol, the fact that you are behind the wheel is considered implied consent to allow you to be subjected to a blood alcohol test.

The officer cannot compel you to take the test. However, the test must be administered at the time of your detention and refusal to submit to the test may have consequences. According to New Jersey law, the first time you wrongfully refuse to submit to a BAC test, you face a seven month suspension of your driving privileges. A second refusal (during a separate arrest) can result in a two year suspension and a third refusal can cause you to lose your driving privileges for 10 year. There’s also typically a fine assessed for refusing to take a blood alcohol test—anywhere from $300 to $1,000, depending on how many times you’ve been convicted.

Challenging Your License Suspension

The most effective way to challenge your license suspension is to bring the validity of the traffic stop into question. Police must have probable cause to stop you…if you can show there was no probable cause, any evidence gathered by the police officer will be inadmissible and the charges may be dropped.

Contact Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call me at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.