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New Jersey DWI Common Myths

  1.         A Drunk Driving charge – DWI – is not that serious; it is just another         traffic ticket.

False. Many years ago, New Jersey Courts did not regard a DWI charge as a “serious” violation. This view has dramatically changed. Defenses have become hammered down and limited by New Jersey Courts, Judges are bound to impose minimum (mandatory) sentences, and Prosecutors cannot not “plea bargain” a DWI charge.

The penalties, set forth in N.J.S.A. 39:4-50, vary depending on whether you have previously been convicted of DWI and the proven BAC reading as follows:

  1. FIRST OFFENSE – BAC OF .08% AND UNDER .10% OR “UNDER THE INFLUENCE.”

FINE: $250.00 to $400.00.

INCARCERATION: “not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served . . . [at] the Intoxicated Driver Resource Center . . . and, in the discretion of the Court, a term of imprisonment of not more than 30 days.”

LOSS OF LICENSE:         Three Months.

NEW JERSEY DMV SURCHARGE:         $1,000 per year for three years.

OTHER FINES & COSTS: $200.00 DWI Enforcement Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe Neighborhood Fund, 200.00 NJ MVC Restoration Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC) Fee(s) (Additional fees for out-patient counseling as referred by the IDRC), and up to $33.00 in Court Costs.

  1. FIRST OFFENSE – BAC OF .10% OR MORE OR UNDER THE INFLUENCE OF DRUGS.

FINE: $300.00 to $500.00.

INCARCERATION: “not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served . . . [at] the Intoxicated Driver Resource Center . . . and, in the discretion of the Court, a term of imprisonment of not more than 30 days.”

LOSS OF LICENSE: Seven Months to One Year.

IGNITION INTERLOCK DEVICE: In the Court’s discretion, six months to one year following restoration. This is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration.

OTHER FINES & COSTS: $200.00 DWI Enforcement Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe Neighborhood Fund, 200.00 NJ MVC Restoration Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC) Fee(s) (Additional fees for out-patient counseling as referred by the IDRC), and up to $33.00 in Court Costs.

  1. SECOND OFFENSE:

FINE: $500.00 to $1,000.

COMMUNITY SERVICE: 30 Days.

INCARCERATION: “imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days . . .”

LOSS OF LICENSE: Two Years.

NEW JERSEY DMV SURCHARGE: $1,000 per year for three years.

IGNITION INTERLOCK DEVICE: In the Court’s discretion, for one to three years following restoration. This is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration.

REVOCATION OF REGISTRATION: For two years. The Court must either revoke the registration certificates or require the installation of an Interlock Device (above).

OTHER FINES & COSTS: $200.00 DWI Enforcement Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe Neighborhood Fund, 200.00 NJ MVC Restoration Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC) Fee(s) (Additional fees for out-patient counseling as referred by the IDRC), and up to $33.00 in Court Costs.

  1. THIRD OFFENSE:

FINE: $1,000.

INCARCERATION: “imprisonment for a term of not less than 180 days . .”

LOSS OF LICENSE: Ten Years.

NEW JERSEY DMV SURCHARGE: $1,000.00 per year for three years unless the conviction happened within three years of the last one in which case the surcharge is $1,500.00 per year for three years.

IGNITION INTERLOCK DEVICE: In the Court’s discretion, for one to three years following restoration. This is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration.

REVOCATION OF REGISTRATION: For ten years. The Court must either revoke the registration certificates or require the installation of an Interlock Device (above).

OTHER FINES & COSTS: $200.00 DWI Enforcement Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe Neighborhood Fund, 200.00 NJ MVC Restoration Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC) Fee(s) (Additional fees for out-patient counseling as referred by the IDRC), and up to $33.00 in Court Costs.

  1. New Jersey permits a restricted driver’s licenses to go back and forth to work for someone who is convicted of DWI.  

False.         The revocation of your driver’s license in New Jersey is mandatory for the prescribed period(s). There are no exceptions in New Jersey Law which would provide for a limited license for work or otherwise.

  1. There are no defenses to a DWI charge?

False.         While defenses have diminished in New Jersey in the past decade, a DWI charge is not tantamount to an automatic conviction.

At the outset, it is important to remember the old adage: “innocent until proven guilty.” The State (i.e., the Prosecutor and Police) has the ultimate constitutional burden to prove guilt beyond a reasonable doubt; a defendant does not have to prove innocence.

Procedurally, the Prosecutor is also obliged, among other things, to supply the defense with every relevant document and all relevant information in the State’s possession (the “State’s Possession” here referring to the Police, State Agencies, and State Employees) related to the charge(s). This is called “discovery”, sometimes referred to (in other States) as “pre-trial disclosure.” The State must also see to it that a defendant is given a fair and speedy trial consistent with the United States and New Jersey Constitutions (Here the State also refers to the Court itself). These are among several important constitutional safeguards which, if neglected by the State, may provide defense issues.

Since New Jersey Law provides that a .08% blood alcohol reading along is sufficient to sustain a conviction, any defense where such a reading is alleged must focus on the reliability and validity of the reading(s) (i.e., was the breath machine operated properly, and was the machine operating properly). If the machine was either not operating properly, or was not operated properly by a qualified technician, it is possible to exclude the test results from evidence or to challenge the veracity of the reading(s).

Each case must be carefully and thoroughly analyzed and assessed by experienced and competent counsel and expert consultants in the field of breath testing to screen for possible deficiencies in the operation of the breathalyzer machine and the reliability of the reading(s).

Assuming that the breath test results can be excluded or compromised, the State may still seek to gain a conviction on what is commonly called “observation” evidence (that you were “under the influence”). The Police Officer(s) will generally testify regarding observations both before and after your arrest (e.g., flushed face, bloodshot eyes, slurred speech, odor of alcohol on breath, leaning on the car for support, etc.). The Officer(s) will also testify regarding your performance on Field Sobriety Tests (FSTs) (e.g., heel to toe, finger to nose, one leg stand, recitation of the alphabet, etc.).

There may be a variety of factors which could have caused the observations and poor performance on the FSTs, each having nothing to do with the consumption of alcohol. Further, the National Highway Traffic and Safety Administration recognizes only three Field Sobriety Tests as reliable scientific indicia of intoxication, and only when these three (3) tests are properly administered and interpreted. Like the breath testing, the observation evidence must be carefully and thoroughly analyzed and assessed by experienced and competent counsel and expert consultants in the area of field sobriety testing to screen for possible deficiencies.

A qualified DWI defense attorney can review the substantive evidence which the State has to prove their charges. He can also assure that the procedures are in accord with Constitutional safeguards and if not, address defense issues in that regard. There are no magic defenses to this very vexing charge. The terms “technicalities” and “loopholes” are simply incorrect characterizations to define defenses in a DWI case as well as in any criminal proceeding. Rather, any defense issue should be regarded as issue which are only raised because the State either failed to establish guilt, or because the process was not in accord with a defendant’s constitutional rights.

It is the Constitution and the safeguards paramount in it, that will form the basis of any successful defense. There are defenses to a DWI. A qualified and experienced attorney can compel production and ferret through the relevant information in the State’s possession. He can also press the Prosecution to establish their burden of proof and assure that constitutional safeguards in place to assure for a fair trial and procedure are adhered to.

  1. There is a difference between DWI and DUI?

False. DWI is an acronym for Driving While Intoxicated. DUI is an acronym for Driving Under The Influence. In New Jersey , the law makes no distinction between DWI and DUI.

  1. A DWI charge can simply be “plea bargained” to a lesser charge.

False. The New Jersey Supreme Court has instructed Municipal Courts that No plea agreements whatsoever are allowed in drunk driving offenses. Further, there are no first time or other diversionary programs available to defendants. In rare cases, a Prosecutor may however, dismiss a DWI charge where the State is convinced they will not be able to prove the offense beyond a reasonable doubt.

  1. DWI charges will be decided by a trial by jury?

False. No. There is no right to a Jury Trial for DWI offenses in New Jersey . Trials are presided over by Municipal Court Judges who hear the evidence and decide both the factual disputes and legal issues.

  1. If Miranda “rights” (e.g. “you have a right to remain silent”, etc.) were not read, a DWI case will be dismissed on a technicality.

False. Police are not required to advise you of your “Miranda” Rights (including your right to remain silent) during roadside interrogation. Being taken into custody is what triggers Miranda warnings to be given. The failure of Miranda warnings is simply this: Any statements made without an adequate warning, or without a knowing, intelligent and voluntary waiver of the rights may be subject to being suppressed (i.e. excluded).

  1.         A conviction in New Jersey for DWI will have no effect on an out of state driver’s license.

False. New Jersey Courts only have jurisdiction (i.e., authority) over your driving privileges in New Jersey . A New Jersey DWI conviction will, however, be shared with the State where you are licensed. Thereafter, that State generally can take action against your driving privileges there independent of what happened in New Jersey .

  1.         There is nothing an Attorney can do to defend a DWI charge.

False. DWI in New Jersey has become extremely complex, the laws have become tightened, and a conviction carries with it very harsh consequences. There are no guarantees that an attorney, even if qualified and experienced, will be able to successfully defend you. However, a qualified and experienced attorney can carefully review your case for substantive and procedural defects, request and compel discovery of breath machine records and relevant police records and reports from the Police and Prosecution, consult with and retain expert witnesses where appropriate, and prepare your case for trial.