- posted: Nov. 17, 2025
Background
In Parts One and Two of our Affirmative Defenses to New Jersey DWIs series, we discussed how Psychiatric, Necessity, Glove Box, Jurisdiction, Operation, and Entrapment defenses can be raised to answer DWI charges depending on the facts of the case.
When a driver is pulled over on suspicion of DWI and refuses to submit to chemical testing to determine blood alcohol content after failing field sobriety tests, however, the legal landscape changes significantly. Instead of being charged with 39:4-50 (Operating Under the Influence of Liquor or Drugs), the driver is instead charged with 39:4-50.4a (Refusal to Submit to Test). These violations carry different penalties. See our reference guide on penalties for DWIs and test refusals.
Affirmative Defenses
As these offenses carry separate penalties, they also carry separate affirmative defenses that may be asserted in court proceedings. Several of the most common affirmative defenses asserted in response to 39:4-50.4a charges include:
The Confusion Doctrine: Under the Due Process clause of the Fifth and Fourteenth Amendments of the U.S. Constitutions, defendants in criminal cases must understand the case being made against them by the state or federal government to be found guilty of a crime. Despite law enforcement making reasonable efforts to explain the DWI testing process to a driver, confusion may arise. This confusion may undermine Due Process, which a client may assert as a defense. This can include failure to explain the DWI testing procedure in a language the driver understands. Like other affirmative defenses, the confusion doctrine must be supported by evidence gathered by the defense and can only be disproven by a prosecutor beyond a reasonable doubt.
Pulmonary Insufficiency: Drivers with respiratory conditions such as lung cancer, COPD, emphysema, pneumonia, or cystic fibrosis may not be able to produce enough breath for a sufficient period of time for a breathalyzer to register a valid reading. If a driver refuses to submit to a test on these grounds, pulmonary insufficiency may be asserted as an affirmative defense. The existence of the driver’s poor respiratory condition must be supported by evidence gathered by the defense.
Private Property Refusal: Unlike DWIs, the State only has jurisdiction to charge a driver with refusal on public property. A test may still be required if the arresting officer had probable cause to believe that the driver had operated a vehicle on public roads or quasi-public areas (such as communal parking garages). However, the defense may submit evidence to support that the refusing driver never operated a vehicle on public roads or in quasi-public areas, and therefore was never required to submit to a breath test.
Equivocal Consent Refusal: If a driver does not necessarily refuse to submit to breath testing, but does not consent to unequivocally (i.e. without any conditional language), the arresting officers are required to read the following statement as per a directive from the State Attorney General:
“Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than ‘yes,’ I will charge you with refusal. Now, I ask you again, will you submit to breath testing?”
If the arresting officer does not read the above statement or otherwise address equivocal consent, the officer’s failure to do so may be asserted as an affirmative defense to a refusal charge
EBM Law’s Experience: When you retain EBM Law to represent you in a New Jersey refusal case, our offices will review the facts of your case and make a determination if one of the above or other affirmative defenses to your allegations can be argued in court. To prove our affirmative defenses, we take extensive steps such as hiring experts, subpoenaing witnesses, and ensuring we receive and review ALL the evidence regarding your case to build reasonable doubt around the Prosecution’s disproval of our defense. EBM Law has represented thousands of clients in New Jersey refusals and DWIs and we are proud of the effective results we continue to earn for our clients across the state. If you have any questions about affirmative defenses, New Jersey DWIs or refusals, or any criminal matter, please contact our offices at (732) 249-9933.
- posted: Nov. 17, 2025
Background
In Parts One and Two of our Affirmative Defenses to New Jersey DWIs series, we discussed how Psychiatric, Necessity, Glove Box, Jurisdiction, Operation, and Entrapment defenses can be raised to answer DWI charges depending on the facts of the case.
When a driver is pulled over on suspicion of DWI and refuses to submit to chemical testing to determine blood alcohol content after failing field sobriety tests, however, the legal landscape changes significantly. Instead of being charged with 39:4-50 (Operating Under the Influence of Liquor or Drugs), the driver is instead charged with 39:4-50.4a (Refusal to Submit to Test). These violations carry different penalties. See our reference guide on penalties for DWIs and test refusals.
Affirmative Defenses
As these offenses carry separate penalties, they also carry separate affirmative defenses that may be asserted in court proceedings. Several of the most common affirmative defenses asserted in response to 39:4-50.4a charges include:
The Confusion Doctrine: Under the Due Process clause of the Fifth and Fourteenth Amendments of the U.S. Constitutions, defendants in criminal cases must understand the case being made against them by the state or federal government to be found guilty of a crime. Despite law enforcement making reasonable efforts to explain the DWI testing process to a driver, confusion may arise. This confusion may undermine Due Process, which a client may assert as a defense. This can include failure to explain the DWI testing procedure in a language the driver understands. Like other affirmative defenses, the confusion doctrine must be supported by evidence gathered by the defense and can only be disproven by a prosecutor beyond a reasonable doubt.
Pulmonary Insufficiency: Drivers with respiratory conditions such as lung cancer, COPD, emphysema, pneumonia, or cystic fibrosis may not be able to produce enough breath for a sufficient period of time for a breathalyzer to register a valid reading. If a driver refuses to submit to a test on these grounds, pulmonary insufficiency may be asserted as an affirmative defense. The existence of the driver’s poor respiratory condition must be supported by evidence gathered by the defense.
Private Property Refusal: Unlike DWIs, the State only has jurisdiction to charge a driver with refusal on public property. A test may still be required if the arresting officer had probable cause to believe that the driver had operated a vehicle on public roads or quasi-public areas (such as communal parking garages). However, the defense may submit evidence to support that the refusing driver never operated a vehicle on public roads or in quasi-public areas, and therefore was never required to submit to a breath test.
Equivocal Consent Refusal: If a driver does not necessarily refuse to submit to breath testing, but does not consent to unequivocally (i.e. without any conditional language), the arresting officers are required to read the following statement as per a directive from the State Attorney General:
“Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than ‘yes,’ I will charge you with refusal. Now, I ask you again, will you submit to breath testing?”
If the arresting officer does not read the above statement or otherwise address equivocal consent, the officer’s failure to do so may be asserted as an affirmative defense to a refusal charge
EBM Law’s Experience: When you retain EBM Law to represent you in a New Jersey refusal case, our offices will review the facts of your case and make a determination if one of the above or other affirmative defenses to your allegations can be argued in court. To prove our affirmative defenses, we take extensive steps such as hiring experts, subpoenaing witnesses, and ensuring we receive and review ALL the evidence regarding your case to build reasonable doubt around the Prosecution’s disproval of our defense. EBM Law has represented thousands of clients in New Jersey refusals and DWIs and we are proud of the effective results we continue to earn for our clients across the state. If you have any questions about affirmative defenses, New Jersey DWIs or refusals, or any criminal matter, please contact our offices at (732) 249-9933.
