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New Jersey DWI Breath Test Refusal Can Affect Immigration

On Behalf of | Feb 11, 2015 | Criminal Law & Municipal Court, Deportation, Immigration Consequences of Crimes |


Green Card holders and those who are not citizens need to be aware of the serious consequences of a Refusal To Submit to Breath Test.

In New Jersey, an individual suspected of driving while intoxicated who refuses to take a breathalyzer test may be charged with violating 39:4-50.4a (Revocation of license for refusal to submit to chemical tests). This particular violation, while arising out of the same alleged conduct, is actually a separate and independent quasi-criminal offense. An individual can be found guilty of refusal regardless of whether he/she is ultimately found guilty of driving while intoxicated (“DWI” contrary to 39:4-50). In some cases, an individual may be found guilty of both offenses. The penalties can be severe: for a first offense, a convicted person is facing a period of license suspension from 7 months to one year. There will also be an imposition of fines and a mandatory sentence to the Intoxicated Drive Resource Center (IDRC) as well as installation of an ignition interlock device on the car that the person principally operates. If the defendant is not a United States Citizen, there may be even further ramifications.

Effect of DWI on Immigration Status and US Citizenship

Depending on the nature and severity of a Driving While Intoxicated offense, there may be potential ramifications on one’s immigration status. A DWI may raise a number of questions including whether the conduct rises to the level of a crime involving moral turpitude. A crime of moral turpitude may, in turn, trigger a charge of deportability or inadmissibility. Both deportability and inadmissibility are terms of art, but the gist is that a crime of moral turpitude can potentially get you kicked out or if you have already left the country, prevent you from coming back in.

In addition, a DWI can disqualify an individual from certain humanitarian based programs like DACA or DAPA. Within the context of a naturalization petition, a DWI can reflect negatively on one’s character and justify a discretionary denial.

Effect Of Refusal to Submit to Breath Test

A conviction for refusal, even if one has not been convicted of DWI, may give rise to similar consequences. For one thing, the offense is classified under the same section as a DWI. Both fall under 39:4-50. Looking at the penalties, a conviction for refusal has many of the same consequences as a conviction for DWI. This stems from the legislature’s intent to deter violators from avoiding a DWI by simply refusing to take the test. The offense, while not driving while intoxicated, is so closely related to its companion charge, that for all practical purposes, an immigration officer or adjudicator is likely to treat it as one. Moreover, according to New Jersey caselaw, a municipal court judge may make a permissible inference that one who is guilty of refusal is also guilty of drunk driving. See State v. Stever, 107 N.J. 543 (1987).

Despite this, an individual in New Jersey charged with Refusal and DWI who has immigration issues may want to explore the ramifications of each with immigration counsel. The fact of the matter is that an individual may not have been driving while intoxicated even thought he/she may have violated the law by refusing to take the test. That refusal may have stemmed from a language barrier, confusion, misunderstanding on one’s rights, or any number of procedural defects committed by the police officer in administering the warning. While these types of defenses, generally speaking, may not be enough to overcome or defeat a refusal charge (of course, every case is circumstances specific), they may nevertheless explain the factual circumstances behind the refusal conviction. In other words, while the circumstances may not have been enough under the penal law to acquit the individual, they may mean something to an immigration officer who appreciates the nuances between the two offenses. Of course, they may not either. It all depends on the circumstances and setting in which one’s immigration status is at issue.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.