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A DWI Charge Is the Most Serious of Vehicle-Related Offenses

Interviewer: What does the more serious offenses that are vehicle related?

Even a First Offense will Cost the Driver Thousands of Dollars over Time

Ron Mondello: The most serious offenses that are vehicle related are DWIs. A DWI on the first offense, not only depending on the blood alcohol reading, anything below a .10 to a .08 is a three month loss of license. What most people forget is that there’s a $1,000 motor vehicle commission drunk driving surcharge each year for three years. That’s another $3,000. There’s nine insurance eligibility points, so expect your insurance to double or triple over the next three years.

Refusing to Undergo a Breathalyzer Test Doubles the Tickets and Accompanying Penalties

Of course, if the reading is .10 and above, it’s a seven month to one year loss of license. The fine is in the ballpark of $650. In my opinion, the worst thing that somebody could do, if they have been drinking and driving is to refuse to take the breathalyzer. They have now made the case ten times more difficult for the attorney to defend, and they now have two identical tickets for DWI.

In New Jersey, You will Not Be Offered a Plea Bargain if You Refused the Breathalyzer Test

The penalties are basically the same, and in New Jersey, you can’t plea bargain for a first offense a refusal ticket. You either have a trial, and you’re either found guilty or the tickets are dismissed, or, which happens 95% of the time, you plead guilty to both of those tickets.

Attorney Mondello Advises to Respectfully Decline to answer Questions BUT Not to Decline the Breathalyzer Test

You can’t have one simply dismissed, unless there’s something very wrong with the breathalyzer or something wrong with the initial police stop. The worst thing they can do is refuse the breathalyzer. The best thing that they can do is to be very respectful and when the police officer asks the question, “How many drinks have you had this evening, Richard?” “Sorry sir, I don’t mean to be disrespectful, but I’m not going to answer that question.” The police officer’s not going to be happy with that response, and the same thing with the field sobriety test. The only obligation that you truly have is to take the breathalyzer test.

Police in New Jersey Rarely Administer a Preliminary Roadside Breath Test, but If They Do, You Can Refuse without Penalties

Interviewer: Do the police use a preliminary breath test in New Jersey, or is it one breath test administered at the police station that is used?

Ron Mondello: I have seen it so infrequently, out of dozens and dozens of DWI cases that I’ve defended over the last twenty years. I’ve seen it maybe a half a dozen times. It is very unusual to see the road side portable breathalyzer.

Interviewer: Just so people aren’t confused, that one, they can refuse, but the one at the police station they can’t, right, once they’ve been arrested?

It Is Also Advisable to Decline to Undergo the Field Sobriety Tests

Ron Mondello: That’s correct. They have to take the breathalyzer once they’ve been arrested and brought down to the station. They don’t have to take those field sobriety tests, although, you can be sure the police officer’s going to be pretty aggravated. The field sobriety tests don’t help the defendant and they don’t help the defendant’s attorney, the DWI attorney. They only help the state’s case against you.

Interviewer: The field sobriety tests are the walk and turn and other coordination tests?

Ron Mondello: The walk and turn, nose to finger test, all of those tests; raised leg test. They don’t help the defendant; they help the state’s case. If you’re able to very politely tell the police officer, “I don’t mean any disrespect, but I’m not going to take that field sobriety test; I will of course take the breathalyzer any time you instruct me to take it.” You’ve made my job a thousand times easier.

Interviewer: If you refuse the breath test, wouldn’t that mean the state doesn’t have an accurate measure of your blood alcohol level?

Refusing the Breathalyzer Test Ensures an Automatic Seven to Twelve Month License Suspension

Ron Mondello: What happens is, it’s true, but you get a refusal ticket, which basically the state only has to prove that they had probable cause to believe you were intoxicated and that you should have taken the test. Bingo, you lose your license for between seven to twelve months, right there.

A Refusal Is Very Difficult for Your Attorney to Fight

Ron Mondello: It’s a lower burden of proof on the prosecution. The burden of proof is probable cause to arrest you. “I just did the field sobriety test, I smelled odor of alcohol on your breath, you were driving erratically, there’s probable cause for you to take the test. If you refuse it, you’re looking at seven months to a year. The defenses are a very difficult case to win now.

Taking the Breathalyzer Test Actually Provides Your Attorney with Additional Avenues of Defense

On the other hand, if you take the breathalyzer and you blow, you’ve got one ticket, Driving While Intoxicated, and you know that the state builds its case against you two ways. One way is with the reading and the other is with the observations of the officer. The reading is per se, if you blow a .08 or above, you have per se intoxicated. Even without the readings, the state is putting a case together based on the observations; odor of alcohol, unable to complete any of the field sobriety tests, and/or erratic driving.

There are ways to attack the breathalyzer results. If you can successfully suppress those results because there is something wrong with the breathalyzer, the chances of winning your case have just exponentially increased.

Interviewer: It is common that the breathalyzer malfunctions? What if someone can’t blow hard enough, they have asthma, or they’re hyperventilating?

Ron Mondello: There are some exemptions for elderly folks that don’t have the same breath capacity. If there’s an asthma situation, obviously the defendant would need to tell the police officer about it. The breathalyzer alcohol test does malfunction quite often.

New Jersey Is in the Process of Phasing out the Current Breathalyzer Machine Due to a High Percentage of Malfunction

That’s one of the reasons the state of New Jersey is phasing the current machine out and there’s going to be a new breathalyzer around 2016. What defense council like myself do, we work in conjunction with a breathalyzer test expert. We obtain what’s called the data downloads of the last several months of readings. You can see where there have been computer glitches, computer mistakes and if we’re able to convince the judge that the machine wasn’t reliable a week ago, so it wasn’t reliable on the evening that you took the breathalyzer test.

Attorney Mondello Employs Expert Testimony to Disprove the Breathalyzer Reading

Maybe we can have that reading suppressed. If the observations were not bad at all, you were not a fall-down situations, you were able to do the walk and turn reasonably, there’s a good chance the charge may be dismissed.

By Ronald P. Mondello