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?
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?
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