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Refusal of PBTs and SFSTs in NY/NJ

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  • Refusal of PBTs and SFSTs in NY/NJ

    I believe NY and NJ implied consent laws only require a suspect to submit to evidential BAC testing AFTER an arrest. So in both NJ and NY (incl. NYC), can a person refuse the portable breath test (detects alcohol) and the SFSTs (such as stare test, physical movement tests) without repercussions, such as the ones he would face if he refused the Alcotest breathalyzer (evidential breath test) at the station?

    New Jersey only lists the post-arrest breath test as part of the implied consent requirement, so am I correct in saying that portable (pre-arrest) breath tests and SFSTs can be refused during a traffic stop? What about a blood test? Can an arrested suspect refuse unless the police show him a signed warrant from a judge for blood testing?

    Regarding New York: Looks like they list more tests that must be taken, which includes urine, blood, breath, and saliva, post arrest. Can the PBT and SFSTs still be refused legally?

    Perhaps a chart will make this easier:

    New York
    SFSTs: Always legal to refuse.
    PBTs: Always legal to refuse.
    Urine: Legal to refuse only prior to arrest. Legally required after arrest upon police request, even without warrant.
    Blood: Legal to refuse only prior to arrest. Legally required after arrest upon police request, even without warrant.
    Evidential Breath: Legal to refuse only prior to arrest. Legally required after arrest upon police request, even without warrant.
    Saliva: Legal to refuse only prior to arrest. Legally required after arrest upon police request, even without warrant.

    New Jersey
    SFSTs: Always legal to refuse.
    PBTs: Always legal to refuse.
    Urine: Always legal to refuse, except if police have warrant signed by judge.
    Blood: Always legal to refuse, except if police have warrant signed by judge.
    Evidential Breath: Legal to refuse only prior to arrest. Legally required after arrest upon police request, even without warrant.
    Saliva: Always legal to refuse, except if police have warrant signed by judge.

    Also, how do I tell if a machine is one that is approved for evidential breath testing, and thus required to be taken under implied consent if requested by police following arrest?

    NY: ??
    NJ: Alcotest 7110 MKIII-C Only? All other machines can be refused?

  • #2
    I'll bite only because this information is public record.

    NY:
    SFST: You may refuse legally, but if the officer suspects that you are intoxicated you are taking a ride anyway. As there is absolutely no valid reason for a healthy sober person to refuse, your refusal to participate will be noted and entered as evidence against you (consciousness of guilt).

    PBT/PSD: It is a violation of section 1194.1 of the VTL to refuse a preliminary breath screening. There is a stiff fine, and your refusal will be entered as evidence against you.

    Breathalyzer/Datamaster ("Evidential Breath Test"): It is legal to refuse, but your license will be revoked for one year and again, your refusal will be considered consciousness of guilt in court. In general, blood, saliva or urine tests are counted in this same category. If for some reason you cannot take a breath test (ex. pulmonary disease) you will be offered one of the alternatives if the agency has the resources available. This will most commonly be a blood test. Refusing any of these alternative tests is exactly the same as refusing the breath test and carries the same penalty.

    These tests are your opportunity to prove that you are innocent, and possibly save yourself the hassle of an arrest and a towed vehicle. When you refuse it is automatically assumed that you believe yourself to be guilty.

    You will know that the machine is approved because the police are using it. We do not use unapproved equipment.
    Last edited by Fuerza; 10-02-2014, 09:11 AM.

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    • #3
      I realize your question concerns New York and New Jersey. That said, allow me to add this. Virtually every state has an "Implied Consent" Law. Basically, these laws state that when you accept a Driver's License, you agree to submit to any authorized chemical or breath test to determine any degree of intoxication or impairment.

      Yes, you can refuse a SFST. Yes, you can refuse the standard Field Intoxilizer Test. Yes, you can refuse a blood, chemical, or breath test. However, in most, if not all states, such a refusal constitutes a separate and distinct charge which may be levied against you by the arresting officer.

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      • #4
        For Delaware its an automatic one year suspension of your license if you refuse any test. For drug DUI or second offense or more we do a blood search warrant

        Sent from my DROID RAZR HD using Tapatalk

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        • #5
          Any testing beyond a breath test (blood draw, etc. requires a warrant.....NYC and metro area counties have judges on call 24 hrs to issue the warrants). Since every motorist has the right to refuse a test, refusals can only be entered in evidence as fact that motorist refused the test in NY.

          Comment


          • #6
            Originally posted by Dinosaur32 View Post
            Any testing beyond a breath test (blood draw, etc. requires a warrant.....NYC and metro area counties have judges on call 24 hrs to issue the warrants). Since every motorist has the right to refuse a test, refusals can only be entered in evidence as fact that motorist refused the test in NY.
            Are you referring to the portable breath test at the stop (generally only detects presence of alcohol, not level) or the evidential breathalyzer (gives BAC reading) at the station after the arrest?

            I imagine BOTH are mandatory in New York:

            § 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest.
            Notwithstanding the provisions of section 140.10 of the criminal
            procedure law, a police officer may, without a warrant, arrest a person,
            in case of a violation of subdivision one of section eleven hundred
            ninety-two of this article, if such violation is coupled with an
            accident or collision in which such person is involved, which in fact
            has been committed, though not in the police officer's presence, when
            the officer has reasonable cause to believe that the violation was
            committed by such person.
            (b) Field testing. Every person operating a motor vehicle which has
            been involved in an accident or which is operated in violation of any of
            the provisions of this chapter shall, at the request of a police
            officer, submit to a breath test
            to be administered by the police
            officer. If such test indicates that such operator has consumed alcohol,
            the police officer may request such operator to submit to a chemical
            test in the manner set forth in subdivision two of this section.
            2. Chemical tests. (a) When authorized. Any person who operates a
            motor vehicle in this state shall be deemed to have given consent to a
            chemical test of one or more of the following: breath
            , blood, urine, or
            saliva, for the purpose of determining the alcoholic and/or drug content
            of the blood provided that such test is administered by or at the
            direction of a police officer with respect to a chemical test of breath,
            urine or saliva or, with respect to a chemical test of blood, at the
            direction of a police officer:

            So it seems like first bold part makes the roadside PBT mandatory, and the latter makes the evidential breath testing (breathalyzer at station) mandatory.
            Last edited by kot; 10-02-2014, 09:17 PM.

            Comment


            • #7
              Lots of info posted re: NY. Thanks.

              Re: NJ, one only has to comply with evidential breathalyzer after arrest, and blood/urine/saliva if cops have a warrant, correct? PBTs (roadside breath test) and SFSTs are voluntary, correct?

              Comment


              • #8
                1194 deals with accidents.

                Comment


                • #9
                  Originally posted by Dinosaur32 View Post
                  1194 deals with accidents.
                  1194.1(b) deals with all PBT refusals, not just those from accidents.

                  Comment


                  • #10
                    Originally posted by kot View Post
                    Are you referring to the portable breath test at the stop (generally only detects presence of alcohol, not level) or the evidential breathalyzer (gives BAC reading) at the station after the arrest?
                    Just for your knowledge the PBT does detect level of alcohol, but that reading is not admissible as evidence due to a perceived unreliability of the technology. In my experience, the PBT is always consistent with the readings later obtained from the datamaster.

                    Comment


                    • #11
                      No matter which section of the VTL the motorist violates, in the long run, he is still free to refuse any alcohol or drug detection test, absent a warrant. The motorist the faces the DMV penalty for a refusal and arrest for common law DWI.

                      Comment


                      • #12
                        However, in most, if not all states, such a refusal constitutes a separate and distinct charge which may be levied against you by the arresting officer
                        In Colorado you have to have probable cause to suspect they are intoxicated before you can require the breath or blood test. Roadside SFSTs and PBTs are voluntary, and the results of a PBT are inadmissible in court anyway except to show that there was SOME amount of alcohol in the subject's system.

                        Essentially the SFSTs and PBT are just confirming what you already knew from watching them drive and observing them during initial contact.
                        "I am a Soldier. I fight where I'm told and I win where I fight." -- GEN George S. Patton, Jr.

                        "With a brother on my left and a sister on my right, we face…. We face what no one should face. We face, so no one else would face. We are in the face of Death." -- Holli Peet

                        Comment


                        • #13
                          OP or KOT- You in College writing a paper or did you plan on refusing a test?
                          MDRDEP:

                          There are no stupid questions, but there sure are a lot of inquisitive idiots.

                          Comment


                          • #14
                            Originally posted by Dinosaur32 View Post
                            No matter which section of the VTL the motorist violates, in the long run, he is still free to refuse any alcohol or drug detection test, absent a warrant. The motorist the faces the DMV penalty for a refusal and arrest for common law DWI.
                            +1 As always my friend, you hit the nail on the head.

                            Exactly, I could care less. License is a privledge not a right. You signed to give consent of these tests. I could care less if you refuse.
                            MDRDEP:

                            There are no stupid questions, but there sure are a lot of inquisitive idiots.

                            Comment


                            • #15
                              Originally posted by jcioccke View Post
                              OP or KOT- You in College writing a paper or did you plan on refusing a test?
                              No, it's for personal education. Has nothing to do with college. It's too late to start learning about your rights once you're stopped by police or under arrest. In part this interest was further sparked by this video:

                              http://www.youtube.com/watch?v=6wXkI4t7nuc

                              In any case, my purpose here was to educate myself in my rights when dealing with police. Short of hiring a lawyer, I decided to do the next best thing: ask on a police forum. Policemen deal with this stuff on a daily basis and go to court perhaps as often as some lawyers.

                              Regarding some posts here, I realize I can refuse whatever I want. What I wanted to find out is what I am legally allowed to refuse without breaking the law. It's good to know if I am ever stopped. So it looks like the main difference is in the PBT treatment, which is required in NY and punishable by fine, but voluntary in NJ. More importantly, SFSTs can be refused in either state. Why do I find this important? Because I don't want go voluntarily give evidence against myself.

                              Comment

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