New Jersey DWI & Refusal Defense Lawyers
There are instances where an individual cannot be found guilty of refusal since their failure to perform the breath test was the result of a legitimate medical condition or injury. Indeed, if someone is physically unable to blow into the breathalyzer or achieve adequate air volume because of a condition, his or her failure to do the test is not the result of an intent to refuse but rather inability to do so. The law recognizes incapacity to provide a blow as a valid defense to failure to submit a breath test under N.J.S.A. 39:4-50.4. If you were hurt or sick (e.g. injury to mouth, face, chest, lungs, head, etc.) and this caused you to be unable to complete a breath test, our attorneys have the knowledge and experience to assist you in avoiding a conviction to refusal. The DWI defense team includes 4 former prosecutors and a staff of lawyers that possess over 100 years defending driving while intoxicated and related charges throughout New Jersey. Give us a call anytime 24/7 for a complimentary initial consultation.
While there is no case directly on point to support the proposition that an individual cannot be convicted of refusal based on physical incapacity, the defense is largely recognized on the basis of common sense. There is also comments in decisions like State v. Macuk, 57 N.J. 1 (1970) that certainly support legal recognition of the defense. In referring to the use of blood tests in DWI cases, the Supreme Court in Macuk commented that they can be used “where the person is physically unable…to take a breath test.” The clear import of statements like this by New Jersey’s highest court is that an individual certainly should not be convicted of driving while intoxicated where they are physically unable or incapable of blowing into the breathalyzer. Examples of potential situations where this could occur are illness, injury, or extreme intoxication (i.e. vomiting and/or passed out). And the truth is that there really isn’t anything lost by the police under this circumstance insofar as they can, in almost all situations, still attempt a blood test to measure blood alcohol content (BAC) as stated in Macuk.
An attorney is available immediately to discuss your refusal and/or DWI charge. Initial consultations are always free so there is no reason to hesitate in speaking to a lawyer at the firm.
