DUI and The Right of Refusal: The US Supreme Court to Decide

The United States Supreme decided this past week to hear cases stemming out of North Dakota and Minnesota concerning the constitutionality of criminalizing the refusal of breathalyzer tests. The legal issue in question concerns law enforcement’s potential infringement of the Fourth Amendment right to unreasonable search and seizure under the United States Constitution when police criminalize a suspect for refusing the breath test during a DUI stop. The Supreme Court has ruled in general that the police cannot search a driver or vehicle upon arrest without a warrant unless it is for their own personal safety or to preserve evidence. Challengers to this law look to the Supreme Court’s 2013 decision holding that police could not conduct blood tests without a warrant.

In New Jersey, refusing a breathalyzer is worse for the suspect than actually agreeing to the breathalyzer test and blowing a blood-alcohol amount above the legal limit. First, refusal of the breathalyzer constitutes a separate offense that carries similar penalties to the DUI offense itself. You have to first start with the proposition that the police do not need a blood-alcohol test to convict you of drunk driving. The police officer’s observation of the suspect during the traffic stop, i.e. slurred speech, glassy eyes, odor of alcohol emating from the suspect, etc. are all pieces of evidence the court can use, based on the officer’s observation of the suspect’s condition on or around the time of incident, to convict an individual of drunk driving without the breath test. By refusing in New Jersey, the police will charge you with a DUI and refusing to submit to breathalyzer test while both carry essentially the same penalties. You are essentially being charged with two DUIs for the same incident. This is in contrast to submitting to the breathalyzer and blowing a blood-alcohol amount above the legal limit and being charge with only a DUI. Additionally, refusing a breathalyzer can limit defenses your defense attorney can make in a typical DUI case. Most of the defenses in this area revolve around suppressing evidence such as the results of the breathalyzer test for the police’s failure to follow proper procedures in administrating the test. If the police do not follow the proper procedures, then the evidence of the blood-alcohol test cannot be considered by the judge and the DUI may be dismissed. Nonetheless, in the case of a refusal, your defense attorney cannot raise this defense, and your attorney is left with the daunting task dealing with both the officer’s observations of the driver and the consequences of the driver’s refusal to submit to the test.

Although a refusal does not mean that your attorney is not without means to defend you, but it just makes the job a lot more difficult given the New Jersey’s strict law towards refusing such tests. The law is based on protecting the public and discouraging individuals from refusing such tests. Given that the United States Supreme Court will be dealing with this complex constitutional issue over the next year, it could drastically change the law in this area.