This is not so. A driver faces mandatory minimum penalties for refusing to take the breath test, even if he has not been drinking! You just cannot refuse without penalty. A refuser actually faces a mandatory license suspension, fines, ignition locking devices and drivers’ school. Although the standard warning states the maximum repercussions for refusal, it does not state the minimum. If the minimum was stated, that the driver’s license must be suspended for at least seven months, etc. the driver may change his/her mind and consent to the test after all. By not taking the test the driver is guilty.
This very argument is being urged by the New Jersey Bar Association, who is filing an Amicus Curiae (Friend of the Court) brief on behalf of all drivers. This case is pending before the New Jersey Supreme Court in State v. O’Driscoll, A-7-12. The Bar Association is arguing that the current warnings should be changed to require the police to list the mandatory minimum penalties along with the maximum penalties if the driver continues his/her refusal to take the breath test. They are proposing that the warnings at present are just inadequate. I believe that the Supreme Court should accept this argument in the interest of true Justice for All.