06/03/2014
A common question: SHOULD I TAKE THE ALCOTEST/BREATHALYZER WHEN ARRESTED FOR A DWI?
If you are being arrested for a first offense DWI, the answer to this question is an absolute, unwavering, unconditional "yes".
(Remember that prior to taking the Alcotest, you are being watched for 20 minutes by officers to see if you are burping, regurgitating any fluids, ralphing, putting anything in your mouth, etc. so that the reading is not tainted)
It is where we get into the second and third offenses where it can get tricky. The current state of the law in New Jersey is that a prior conviction for refusing to submit to chemical breath testing cannot be used to enhance the sentence on a later DWI conviction. While the period of suspension (2yrs on a second and 10yrs on a third) are the same for a DWI and refusal, a DWI treated as a third carries a mandatory 180 day jail term (90 can be served at inpatient rehab) whereas the third refusal does not).
If you are carrying around two DWI convictions and are arrested for a third. . . .if you are firmly convinced that the stop of your vehicle was legitimate and you are going to blow a high number, refusing the Alcotest will earn you a ten year suspension of your license but keep you out of jail for six months.
If you are carrying around one DWI conviction and you are arrested again. . . if you are firmly convinced that the stop of your vehicle was legitimate and you are going to blow a high number, refusing the Alcotest will permit your attorney to attempt to negotiate a refusal with a dismissal of the DWI. There are no guarantees that this deal will be offered and many variables are considered when pleas are negotiated in cases like these. However, if you do get this deal, you will be convicted of a refusal enhanced by the prior DWI, and be suspended for 2 years with other penalties and assessments. In this case, as the law currently exists, your refusal will not enhance a later DWI conviction and you will face the same 2 years on a later DWI rather than 10 years and 180 in jail.
Obviously, the proper thing to consider in light of these severe penalties is never get behind the wheel after drinking anything. The police are looking for you and you will eventually get caught. Just remember to keep calm and call your lawyer if and when things go bad. Note: You can't ask for a lawyer when you are asked to submit to chemical breath testing. You will be informed of this.