Experienced NJ Breathalyzer Refusal Attorneys
When a person is arrested on suspicion of driving while intoxicated and consents to providing a sample, the next step is performance of the breath test. For any number of reasons, including insufficient breath volume, an error of the machine, or mouth alcohol to name a few, the sample may fail to yield a reading. The question that follows is how many times does the accused have to breath into the machine to fulfill his or her implied consent obligation? As one might anticipate, much of this issue comes down to reasonableness. This is why the services of a skilled DWI lawyer like those at our firm, the Law Offices of Jonathan F. Marshall, is so important if you were charged with refusal after attempting to blow into the breathalyzer. Arguing facts and law the right way often comes down to experience and skill, and the attorneys at are firm are arguably some of the best in the State of New Jersey. Give us a call anytime to speak to an attorney on our staff free of charge. We hope you find the information on this page of assistance.
Important Legal Considerations on Breath Sampling. NJ law requires that there be a minimum of two valid samples within .01% of one another before breath test readings are admissible in a case. If two readings are not obtain, there is no admissible evidence of blood alcohol concentration (BAC) by breath for the prosecutor to prove a per se violation. Another important point regarding breath samples is the fact that the law requires that the lowest breathalyzer reading be utilized in establishing BAC under State v. Downie. A byproduct of these two facts is that police will almost always attempt to obtain at least two valid readings during the course of an investigation, and probably a third where one of the first two readings is below the legal limit of .08% and the other at or above the limit.
How Many Attempts is Enough?
The case law in New Jersey is somewhat unclear on this subject but the general idea that must be kept in mind is that an individual has a good faith obligation to comply with a request for a breath sample. In this regard, while a single sample clearly is insufficient to fulfill this obligation under State v. White, 253 N.J.Super. 490 (LawDiv.1991), the police cannot request an unlimited number of blows into the machine. This issue therefore frequently turns on the facts and legal arguments made on behalf of an accused. Representation by the right driving while intoxicated lawyer can make all the difference.
An attorney is ready to review the circumstance of your case and come up with the best argument to support your good faith effort to comply with the consent law, N.J.S.A. 39:4-50.2.
