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New Jersey Court Rules Prior DWI Conviction Counts For Subsequent Breath Test Refusal Sentencing

The law concerning DWI and DWI refusal of a breath test is constantly changing in New Jersey. However, in general, the trend is to both enhance punishment and make it more difficult to challenge charges. Last year, the New Jersey Supreme Court ruled that a breath-test refusal cannot serve as a prior conviction in a DWI case. Last week, the New Jersey Appellate Division ruled that the converse is not true.

The Appellate Division ruled that a prior DWI conviction can be a basis for increasing the punishment for a person later charged with refusal to take a breath-test. The charge of refusing to take a breath-test ocurrs when someone refuses to take a breathalyzer test in police headquarters. Under New Jersey law, you do not have the right to refuse the test. The rationale is simple: if people could refuse the test, many would and this would undercut the whole purpose of having the test.

The Appellate Division affirmed the conviction of a former Municipal Court Judge who was convicted of DWI and refusing to take the breathalyzer test. He had a prior DWI conviction. He was sentenced as a second offender for both the DWI and refusal. This enhanced his license suspension to two years for each offense to run consecutively, as required for repeat refusal convictions. His license was suspended a total of four years.

The bottom line is that this former Judge got an extra two years of his license suspension for refusing to take the breathalyzer test. Obviously, given the very high penalties associated with DWI in New Jersey, great caution should be taken not to drink and drive. It also seems in some towns that the police are everywhere and you are probably going to be caught eventually. How do you make a living if you cannot drive a car for four, or more, years?

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