If a law enforcement officer has probable cause to take an individual into custody for drinking and driving, it is implied that the individual has consented to a breath test. However, an individual cannot be forced to submit to a breath test. While a person can refuse a breath test, he or she will face legal penalties. Additional refusals will result in stricter penalties.
The first time a person refuses to submit to a breath test, he or she may face a license suspension between 7 months and one year and a fine between $300 and $500. If an individual refuses the test in a second DUI incident, he or she might face a license suspension of two years and a fine between $500 and $1,000. A third-time refusal during a third DUI offense has stricter penalties such as a 10-year license suspension and a fine of $1,000. Additional penalties for refusal may include a $100 surcharge that will go to the Drunk Driving Enforcement fund, a car insurance surcharge and the mandatory installation of an ignition interlock device once the person's license is restored.
In most cases, it may not be advantageous to refuse a breath test. The judge and prosecutor may interpret the refusal as evidence that the defendant was drinking and driving.
A criminal defense attorney might look for ways to have a DWI case dismissed. For instance, an officer might need to have probable cause to take someone into custody for drunk driving. If the attorney can provide evidence that the officer did not have adequate probable cause, the case might be dismissed. To minimize the risk of being found guilty and given the maximum penalty at a trial, some defendants may choose to accept a plea bargain.
Source: NJ Office of the Attorney General, "Driving While Intoxicated", October 29, 2014