39:3-10.24. Taking of breath samples

a. A person who operates a commercial motor vehicle on a public road, street, or highway, or quasi-public area in this State, shall be deemed to have given his consent to the taking of samples of his breath for the purposes of making chemical tests to determine alcohol concentration; provided, however, that the taking of samples shall be made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that the person has been operating a commercial motor vehicle with an alcohol concentration of 0.04% or more.

b. A record of the taking of such a sample, disclosing the date and time thereof, as well as the result of a chemical test, shall be made and a copy thereof, upon request, shall be furnished or made available to the person so tested.

c. In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine, or blood made by a person or physician of his own selection.

d. The police officer shall inform the person tested of his rights under subsections b. and c. of this section.

e. No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test including the penalties under section 12 of this act. A standard statement, prepared by the director, shall be read by the police officer to the person.

f. The court shall revoke for six months the right to operate any motor vehicle of any person who, after being arrested for a violation of section 5 of this act, shall refuse to submit to the chemical test provided for in this section when requested to do so, unless the refusal was in connection with a subsequent offense under this section, section 5 of this act, R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), in which case the revocation period shall be for two years. In addition, a court shall impose the penalties provided in section 12 of this act.

The court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been operating or was in actual physical control of a commercial motor vehicle on the public highways or quasi-public areas of this State with an alcohol concentration at 0.04% or more, whether the person was placed under arrest, whether he refused to submit to the test upon request of the officer, and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose driving privilege is revoked for refusing to submit to a chemical test shall satisfy the requirements of a program of alcohol education or rehabilitation pursuant to the provisions of R.S.39:4-50. The revocation shall be independent of any revocation imposed by virtue of a conviction under the provisions of R.S.39:4-50 or section 12 of this act.

In addition to imposing a revocation under this subsection, a court shall impose a fine of not less than $250 or more than $500.

L.1990,c.103,s.16