Can You Be Arrested for DUI Without Failing a Breathalyzer? Yes, Here’s How

When most people imagine a DUI arrest, they picture flashing lights, a police officer holding a breathalyzer, and a number on a screen that seems to seal their fate. That’s the image we see on TV and in the news, but the truth is often very different. You can be arrested for driving under the influence even if you did not fail a breath test.

At the Law Offices of John W. Tumelty, I know this surprises many drivers. As a former state and county prosecutor and a New Jersey Supreme Court Certified Criminal Trial Attorney, I regularly defend South Jersey clients who are charged with DUI even when no breath test was failed or taken. Understanding how this happens is the first step in protecting yourself and building a strong defense.

Why People Assume a Breathalyzer Failure Is Required

Many people believe that without a failed breath test, a DUI charge cannot stand. The breathalyzer has become the symbol of drunk driving enforcement because it produces a blood alcohol concentration (BAC) number that appears scientifically decisive.

In reality, the law does not require that number for an arrest or even a conviction. Police can arrest someone for DUI based on observations, field sobriety tests, statements, and other evidence. That means even if your BAC result is below the legal limit, or no test is performed at all, you could still be arrested and prosecuted.

I’ve represented many clients who thought they were in the clear because they “passed” a breath test or refused to take one. That misunderstanding can lead to serious legal trouble.

Legal Grounds for DUI Arrests without a Failed Breath Test

In New Jersey, police need reasonable suspicion to stop a vehicle and probable cause to make an arrest. Probable cause can be based on non-chemical evidence. Here are common paths to an arrest:

Officer Observations and Driving Behavior

A DUI investigation often begins with erratic driving: swerving, drifting between lanes, speeding, or even driving unusually slowly. After a stop, an officer may observe additional signs of impairment, such as:

Odor of alcohol
Bloodshot or glassy eyes
Slurred speech
Delayed responses
Difficulty retrieving a license or registration

If these signs are present, an officer may believe you are under the influence, regardless of whether you take a breath test. Courts frequently accept these observations as valid grounds for arrest.

Field Sobriety Tests

Field sobriety tests (FSTs) include the walk-and-turn, one-leg stand, and horizontal gaze nystagmus. They are designed to reveal signs of impairment. If an officer believes you “failed” these tests, you can be arrested even without a chemical test result. Unfortunately, FSTs are subjective. Weather, uneven pavement, footwear, fatigue, or medical conditions can make a sober person appear impaired.

At the Law Offices of John W. Tumelty, I routinely challenge field sobriety test results in court by exposing those sources of unreliability.

Refusing the Breath Test

Under New Jersey’s implied consent law (N.J.S.A. 39:4-50.4a), a driver who refuses a breath test after a lawful DUI arrest faces separate penalties. By using New Jersey roads, you consent to chemical testing when officers have probable cause.

If the court finds probable cause, a valid arrest, and an actual breath test refusal by a preponderance of the evidence, penalties may include:

First refusal: Forfeiture of driving privileges until an ignition interlock device (IID) is installed.
Second refusal: 1 to 2 years of forfeiture following IID installation, plus a $500 to $1,000 fine.
Third or subsequent refusal: 8 years of forfeiture following IID installation, plus a $1,000 fine.

I examine whether the officer delivered the required standard consent statement and followed procedure. Procedural failures can affect the outcome.

Blood and Urine Testing

If a breath test is unavailable, malfunctioning, or refused, police may seek blood or urine testing. These tests can show alcohol levels or the presence of drugs. For example, after a crash, hospital bloodwork may reveal BAC. Those results can support an arrest or conviction even if no breathalyzer was used.

Technical Problems or Inconclusive Results

Sometimes a breathalyzer reading is invalid or inconclusive due to calibration issues, insufficient sample, or operator error. In that event, officers may rely on observations, FSTs, or other evidence. When a valid reading is missing, it becomes even more important to scrutinize the State’s evidence and procedures.

Illustrative Scenarios: DUI Arrests Without a Failed Breath Test

To better understand how this happens, these real-world examples show how quickly a driver can be charged even without a failed breath test:

Scenario 1: A driver is pulled over for swerving. He admits to having a few drinks but insists he is fine to drive. He performs field sobriety tests and struggles due to a knee injury. The officer arrests him for DUI without administering a breath test.
Scenario 2: A driver is involved in a crash and taken to the hospital unconscious. Routine medical bloodwork shows alcohol in his system. The police later obtain those records and arrest him.
Scenario 3: A driver refuses the breath test. The officer notes slurred speech, alcohol odor, and unsteady balance. The driver is charged with both DUI and refusal.
Scenario 4: A driver takes the breath test and the result shows 0.06, which is below the legal limit. However, the driver appears impaired and fails the FSTs. He is charged with DUI based on those observations.

Each scenario results in a DUI arrest without a failed breathalyzer. Because these cases rely heavily on subjective evidence, a focused legal defense matters.

How the Law Treats a Low or Missing Breath Test

A BAC below the legal limit can still be used against you. Prosecutors may argue the result was delayed or affected by intervening factors. They may claim the machine was misused or that tolerance masked visible impairment. Even without a test, the State can rely on officer testimony, video, and witnesses. That’s why these cases often turn on credibility and detail, and why I scrutinize every piece of evidence for inconsistencies.

The Importance of Probable Cause

Probable cause is central to DUI prosecutions. Police must point to specific, articulable facts suggesting you were driving while impaired. Without probable cause, the arrest is unlawful and the evidence may be suppressed.

I review dashcam and body-worn camera footage, dispatch records, and reports to identify flaws in the reasoning or procedure. If the stop or arrest was unjustified, the prosecution’s case can collapse before trial.

Common Defenses in DUI Cases Without a Failed Breath Test

When there is no failed breath test, the defense often has more room to maneuver. I tailor my approach to the facts, but common strategies include:

Challenging the stop: If the stop lacked reasonable suspicion, or if probable cause for arrest is missing, I move to suppress what followed.
Attacking field sobriety tests: I highlight environmental factors, poor instructions, medical conditions, or footwear that can explain alleged “clues.”
Questioning observations: I compare the report, video, and testimony to expose inconsistencies. What’s labeled “impairment” can be nerves, fatigue, or medical issues.
Disputing refusal allegations: I examine whether you were properly advised of your rights and the consequences and whether you actually refused.
Contesting chemical tests: I review chain of custody, handling, and lab methods, and consult toxicology experts where appropriate.
Presenting alternative explanations: Documented medical conditions, medications, anxiety, or exhaustion can mimic intoxication.
Negotiating or seeking dismissal: Where the evidence is weak, I pursue reduced charges or dismissal. My background as a former prosecutor helps me anticipate how the State will build its case and where it’s vulnerable.

Understanding New Jersey’s Approach to DUI Without a Breath Test

Key points for New Jersey drivers:

Implied consent: Refusing a breath test after a lawful arrest triggers separate penalties.
Observation-based arrests: An officer’s observations and FSTs can support arrest and prosecution.
Alternate testing: Blood and urine can substitute for breath testing when necessary.
Separate tracks: Administrative penalties (like interlock/forfeiture) can apply in addition to criminal penalties.

Because New Jersey law allows DUI charges without a failed breath test, it’s essential to work with a DUI/DWI defense lawyer who understands local courts. I’ve handled cases throughout Atlantic, Cape May, Ocean, and Gloucester counties and know how prosecutors approach these matters and which arguments resonate with local judges.

Why Experienced Legal Help Matters

Without a breath test result, DUI cases often hinge on interpretation and credibility. As a former state prosecutor, I know how the other side thinks. I use that insight to challenge the State’s evidence, expose procedural errors, and protect your rights. My office has helped many clients across South Jersey fight DUI charges, often achieving reduced penalties, dismissals, or acquittals.

I also understand how stressful these cases can be. From the moment you call, you’ll get clear guidance, prompt communication, and straight answers. My goal is to protect your license, your record, and your future.

Your DUI Defense Starts Here

If you’ve been arrested for DUI in New Jersey, even without a failed breath test, you still face serious consequences. Don’t assume the absence of a high BAC reading means your case will disappear.

The Law Offices of John W. Tumelty, I investigate every detail, challenge unreliable evidence, and build focused, strategic defenses designed to win. With decades of experience and a deep understanding of New Jersey DUI law, I know what it takes to protect you.

Call 609-385-4010 or contact me online for a free, confidential consultation. I’m available 24/7. Time is critical; the sooner we begin, the better your chances of success.

Disclaimer: The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.