Acts Constituting a Refusal

There is significant case law as to what constitutes a refusal under N.J.S.A. 39:4-50.4a. A defendant who simply remains silent in the face of a police request to submit to a breathalyzer test has refused to take the test. The police have no obligation, when confronted by a defendant who remains silent when asked to submit to a breath test, to set up the machine and lead the defendant to the machine and hold the hose to his or her mouth. State v. Sherwin, 236 N.J. Super 510 (1989).

It does not take much to constitute a refusal to submit to a breath test. “Anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. The occasion is not one for debate, manuever or negotiation, but rather for a simple ‘yes’ or ‘no’ to the officer’s request.” State v. Pandoli, 109 N.J. Super 1 (1970).

In State v. Geller, 348 N.J. Super 359 (2001), the defendant failed to provide an adequate sample to five of the six attempts he made blowing into the breathalyzer machine. These actions by the defendant, coupled with his hostile, uncooperative attitude toward the arresting police was sufficient evidence of an intent to refuse to submit to the breathalyzer analysis.