If you are pulled over in the state of New Jersey, and a police officer has reasonable suspicion to believe that you have been driving while intoxicated, there is a good chance that you will eventually be asked to provide a breath sample so the police officer can determine your blood alcohol content (BAC). There are actually two breath tests that the police officer may use on you. The first is the roadside breath test, which is actually an unofficial test, also known as a portable breath test (PBT). The second, official test, and the only one admissible in court, is much more accurate, but there are also many more rules that come with how the test is conducted.
The law actually requires that you provide an official sample if a police officer requests that you provide the sample based on probable cause. You do not have the right to refuse to comply with the test, known as the Implied Consent statute – although you are not required to comply with a PBT. If you do not provide a breath sample, you might be charged with drunk driving, as well as charged and possibly convicted of N.J.S.A. 39:4-50.2, Refusal to Take a Breath Test, which could carry equally heavy penalties. What most people do not know is that you can be charged under the Refusal law even if you do provide a breath sample, but you do not follow directions and give breath samples that are large enough.
Sufficient Breath Sample Size
In New Jersey, official breathalyzer tests must be conducted on a Draeger Alcotest 7110. Since the case of State v. Chun in 2008, the state has ruled that drivers are required to provide a breath sample that is sufficiently large. The minimum volume for a breath sample is at least 1.5 liters of air. If a driver does not provide a sample that is large enough, he or she can be convicted of Refusal to Take a Breath Test, as if he or she did not attempt to provide a sample at all. It is not a defense to the law if a driver is too drunk to provide a complete breath sample, but there may be other defenses if a driver has a health condition or some other legitimate reason why he or she cannot provide a sample.
Number of Breath Samples
Moreover, the Implied Consent law not only requires that you submit to a sufficiently large breathalyzer sample if you are asked by a police officer with probable cause. The law also requires that you provide breath samples – meaning the police usually require a minimum of two complete samples for you to be in compliance with the law. This is also to ensure accuracy in BAC test results. If one test result is over the legal limit of .08% BAC, and one is under the legal limit of .08% BAC, the discrepancy can be used in favor of the driver, since the police will use the lower result. In the case of State v. White, the Court ruled that the failure to provide at least two breath samples could constitute Refusal to Take a Breath Test.
What if You’re a Woman Over 60 Years Old?
If you are a woman over 60 years old, there are actually different rules that apply to you when it comes to breath sample size. After studying the scientific reliability of Alcotest breath results, the New Jersey Supreme Court actually decided to adopt separate rules on breath volume size, because women over the age of 60 may have difficulty in providing a sample consisting of 1.5 liters of air within the required time period. Specifically, the study found that women from age sixty to sixty-nine have an average breath volume of 1.4 liters, women seventy and over have an average of 1.3 liters, and women eighty and over have an average volume of 1.2 liters. At the same time, the Court found that men, regardless of age, were capable of producing a sample of 1.5 liters.
Accordingly, the Supreme Court directed that Alcotest 7110 machines be reprogrammed so that smaller breath sample sizes could be taken and used to get BAC results for those individuals. The Supreme Court also decided in Chun that it would be unfair to prosecute women over the age of sixty under the Refusal to Take a Breath Test law if they could not provide an adequate sample of 1.5 liters of air. At the same time, if a woman over the age of 60 does provide at least one sample of 1.5 liters of air, but failed to do so on subsequent attempts, that fact could be used by the prosecutor as evidence to support a charge of refusing to submit to a breath test.
New Jersey DUI/DWI Attorney Edward M. Janzekovich Knows How To Help if You are Charged with Drunk Driving
A conviction on DWI/DUI and refusal charges can mean serious penalties – jail time, heavy fines, and loss of license. Defending against these charges can also involve extremely complicated evidentiary issues. If you or someone you know is arrested for driving under the influence of alcohol or drugs, it is important to have a lawyer who knows how to help. An experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.