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Frequently Asked Questions

Note: These FAQs (and other parts of my site) have been copied and mimicked by other lawyer websites over the years. I have had to take legal action against these lawyers for the unlawful action. While imitation is said to be the best form of flattery, regrettably, these sites do a tremendous disservice to clients who might be bamboozled into believing that the work is authentic. Below are the genuine (and recently updated) New Jersey DWI Frequently Asked Questions:

  1. How can I be convicted of DWI in New Jersey?

N.J.S. 39:4-50 (the NJ DWI Statute) makes it unlawful to “operate a motor vehicle while under the influence of intoxicating liquor … or … with a blood alcohol concentration of .08% or more by weight of [blood] alcohol.”

The New Jersey DWI Statute creates in effect two distinct and separate offenses; (A) operating a motor vehicle while “under the influence of intoxicating liquor”, and (B) operating a motor vehicle with a “blood alcohol concentration of .08% or more.”

Under the influence has been defined generally as a Defendant who has consumed alcohol “to the extent that his physical or mental faculties are deleteriously affected.” State v. Emery, 27 N.J. 348, 355 (1958). It has also been defined as a “substantial deterioration or diminution of the mental faculties or physical capabilities of a person.” see State v. Tamburro, 68 N.J. 414, 421 (1975).

Under the second prong of the Statute, a Defendant who operates a motor vehicle with a blood alcohol concentration of .08% or more is guilty no matter how the alcohol affected him. This (offense) is referred to as a “per se” offense (“Per Se” is Latin for “by itself”).

  1. What are the penalties if I am convicted?

The penalties, which are outlined 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 outpatient 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: If the BAC was .15% or higher, the ignition interlock is mandatory for the period of suspension and for six months to one year thereafter.  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 outpatient 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: For the term of the suspension, and 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.

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 outpatient 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: For the term of the suspension, and 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.

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 outpatient counseling as referred by the IDRC), and up to $33.00 in Court Costs.

  1. Can I obtain a conditional driver’s license to go to and from work if I am convicted?

No. This is probably the most common question I am asked. The revocation of your driver’s license in New Jersey is mandatory for the prescribed period(s). There are currently no exceptions in New Jersey Law – there is, unfortunately, no conditional driver’s license for work or otherwise.

  1. What will happen to my insurance coverage and rates if I am convicted?

A New Jersey DWI conviction (or an out-of-state conviction for a substantially similar Drunk-Driving offense) permits insurance carriers to refuse to renew or issue automobile insurance coverage. Insurance is still available, but through the “assigned risk” (i.e. high-risk) plan known as NJ P.A.I.P. (New Jersey Personal Automobile Insurance Plan). Rates will increase dramatically (about double to triple) for three years.

  1. Are there any defenses to a New Jersey DWI charge?

Yes. A DWI charge is not tantamount to a conviction even in cases where the police claim a high BAC reading. At the outset, it is important to remember the old adage: “innocent until proven guilty.” The State (i.e., the Prosecutor through their witnesses) has a constitutional burden to prove guilt beyond a reasonable doubt.

Since New Jersey Law provides that a .08% blood alcohol reading alone is sufficient to sustain a conviction, any defense where such a reading is alleged usually will focus on the reliability and validity of the reading (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, the test results can be excluded from evidence.

Assuming that the Alcotest (or blood) results can be excluded or compromised, the State may still seek to prosecute on what is commonly referred to as “observation” evidence (that the Defendant was “under the influence”). The “observation” evidence consists of the driving, the defendant’s appearance and demeanor, and field sobriety tests. The Police Officer(s) will generally testify regarding observations of the Defendant before and after the arrest (these can include: erratic driving, flushed face, bloodshot eyes, speech pattern, boisterous demeanor, the odor of alcoholic beverage on breath, hand movements, unsteady balance, etc.). The Officer(s) will also testify regarding the Defendant’s performance on Field Sobriety Tests (E.G., heel to toe, finger to nose, one-leg stand, recitation of the alphabet, counting backward, etc.).

There might be factors that could have caused the observations and poor performance on the psychophysical tests, each having nothing to do with the consumption of alcohol. The observations and field tests should be scrutinized and screened to prepare for creative and effective cross-examination at trial. For example, a flushed face (i.e. red face) is often the result of nervousness, bloodshot eyes may be the result of allergies, fatigue or irritants, a poor balance may be the result of a medical condition, or as is often the case, the improper administration of the tests. Some field sobriety tests are simply not scientifically validated to assess for impairment and may induce failure in sober people. Experts should, if warranted, be consulted and retained to address the State’s observation case.

The National Highway Traffic and Safety Administration of the United States Department of Transportation (NHTSA) recognize only three Field Sobriety Tests as reliable scientific indicia of intoxication. The Standardized Field Sobriety Test (SFST) Battery consists of (1) The Horizontal Gaze Nystagmus (HGN), (2) The Walk and Turn, and (3) The One Leg Stand. These three tests are regarded as reliable in evaluating alcohol impairment, provided, however, they are properly administered and interpreted. If the tests are not administered in the prescribed standardized manner, the test results are rendered compromised.

Like the breath testing, the observation evidence must be carefully and thoroughly analyzed and assessed to screen for deficiencies and prepare the case for trial. I have been through the same detailed training that New Jersey Police receive in DWI Detection and Standardized Field Sobriety Testing. I have personally administered field tests to sober and intoxicated people and am familiar with the detailed training manual(s) published by the Federal Government and used for training. On this defense front, being intimately familiar with these tests is the only way to effectively cross-examine the police officers who administered the tests.

Because my practice is concentrated on DWI Defense in New Jersey (I do not handle wills, personal injury cases, matrimonial cases, real estate closings, bankruptcies, etc.), I probably take more DWI cases to trial in one year than most lawyers in New Jersey try in their careers. I have tried DWI cases (from start to finish) in virtually every county in the State. I have received training in DWI Detection and Standardized Field Sobriety Testing, in the old (phased-out) breathalyzer and recently I received factory training from the manufacturer of the Alcotest 7110 (Draeger). You cannot assume that a police claim regarding a reading is legally accurate. Through careful analysis, the use of expert testimony, and effective cross-examination, a successful challenge to a BAC reading is possible.

As much as a lawyer has been taught in law school and from books, you cannot teach experience or expertise. I learned to drive a car in High School sitting at a simulator and then behind the wheel with a driving instructor and with my father. There are simple skills (like turning the wheel, stopping, and using the pedals and blinkers) that can be mastered during training. However, the true “learning to drive” comes from years of being on the road with other drivers, in varied weather and traffic conditions, and even navigating around (and surviving) danger. Similarly, trying numerous DWI cases gives a range of experience and expertise that cannot be duplicated.

There are other areas to be explored in properly and thoroughly defending a DWI charge which are beyond the scope of this web page (e.g., Did the police have legal cause to pull the vehicle over and to make the arrest?, Are any statements subject to suppression because Miranda warnings were not issued?, just to name a few).

  1. Is there a difference between DWI and DUI in New Jersey?

No. DWI is an acronym for Driving While Intoxicated. DUI is an acronym for Driving Under The Influence. Both terms are used to refer to the charge in New Jersey – however; the law makes absolutely no distinction between a DWI and a DUI.

  1. What if I have been charged with Driving While Intoxicated not by alcohol, but by drugs?

N.J.S.A. 39:4-50 (the same law that relates to alcohol-related driving offenses) makes it unlawful to “operate a motor vehicle while under the influence of … narcotic, hallucinogenic or habit-producing drug.” The penalties, if convicted, are the same as if you were convicted of an alcohol-related DWI with a BAC over .10% (First Offense = 7-month revocation, Etc., Etc.).

To convict, the State must prove (1) the presence of drugs (which will usually be in the form of blood or urine evidence), and (2) observations of drug intoxication by a qualified police officer who has specialized Drug Recognition Expert (DRE) training. A common mistake made by defense counsel is to equate a positive specimen result with guilt. Many drugs can be present in the blood and urine long after their effects are gone (some for days and weeks after). Further, without qualified testimony from a DRE-trained officer, the State’s case will often fail because of this legal deficiency.

A thorough and effective defense of the so-called “drugged-driving” charge will usually entail the use of outside Drug Recognition Experts and/or Scientists.  I work routinely with whom I regard as the best experts in the field in reviewing the State’s evidence in drugged-driving cases. I have been to DWI seminars taught by Drug Recognition Experts and have the DRE Training Materials. Guilt can never be assumed in these cases even if the evidence appears strong and there is positive specimen evidence. Through careful review and the use of the proper outside experts, the drugged-driving case can be successfully defended.

  1. What are my chances of winning a DWI case?

There is simply no way of placing numerical odds of success in any case; including a DWI charge. Further, it is clear that New Jersey’s firm public policy stance against DWI makes the defense of this charge a challenge even for an experienced, competent and aggressive defense attorney. The only guarantee any qualified, ethical and competent attorney can offer is to aggressively analyze and prepare your case, and guide you through the process.

I believe that DWI defense can be similar to the practice of medicine. I was at a party and met a doctor. I asked him what specific field he was in, and he told me “hand surgery” – I said that is all? He said yes, all I do is surgery related to the hand. A recent report from the British Journal of Cancer revealed, “[b]reast cancer patients operated on 10 years ago by specialists have done better than those treated by surgeons with fewer breast cancer patients.” If the practice of law is like medicine, you will increase your chances of success by hiring a lawyer who concentrates in DWI defense.

  1. Can I “plea bargain” a New Jersey DWI charge?

The New Jersey Supreme Court has instructed Municipal Courts that No plea agreements whatsoever are allowed in New Jersey DWI cases. A DWI charge is not like a minor moving violation that is often “plea-bargained” down to a lesser charge by most prosecutors. I believe that targeting DWI offenses this way is plainly unjust and troublesome. A defendant charged with a drive-by shooting, rape, even murder for hire can engage in plea-bargaining (i.e. plead guilty to a reduced charge); a defendant charged with DWI in NJ cannot. I simply do not understand that logic.

In some cases, a Prosecutor may, however, dismiss a DWI charge where the State is convinced they will not be able to prove the charge beyond a reasonable doubt. When a Prosecutor believes that he cannot convict, he is duty-bound ethically to dismiss the charge or reduce it to one that conforms to the evidence. I have defended many cases where the Prosecutor has conceded that he could not prove the DWI beyond a reasonable doubt. In those cases, the DWI has either been dismissed or amended to a charge that conforms to the proofs (such as careless driving or reckless driving).  This is, however, distinguishable from a “plea-bargain.”

  1. Will my case be decided by a jury?

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

  1. What if I refused to give samples of my breath?

Refusing to provide samples of your breath is a separate offense  (N.J.S.A.39:4-50.4a) that subjects you to penalties as follows:

1ST OFFENSE: 7-month to 1-year loss of license, $300.00 – $500.00 fine, $1,000.00 yearly surcharge for three years, referral to the Intoxicated Driver’s Resource Center, and Ignition Interlock for six months to one year.

2ND OFFENSE: 2 years loss of license, $500.00 to $1,000.00 fine, $1,000.00 yearly surcharge for three years, referral to the Intoxicated Driver’s Resource Center, and Ignition Interlock for the term of the suspension, and one to three years following restoration.

3RD OFFENSE: 10 years loss of license, $1,000.00 fine, $1,000.00 yearly surcharge for three years (unless there is a prior conviction within three years in which case, the surcharge is $1,500.00 per year) and referral to the Intoxicated Driver’s Resource Center, and Ignition Interlock for the term of the suspension, and one to three years following restoration.

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 outpatient counseling as referred by the IDRC), and up to $33.00 in Court Costs.  Insurance can be canceled forcing coverage through the assigned risk plan – increasing rates for about three years.

The penalties are in addition to and consecutive to any penalties imposed for the underlying drunk driving offense (although for an offense of DWI and refusal, the court can run the license revocations concurrently (i.e. together)). A prior DWI conviction in New Jersey or another State counts as a prior offense under the Refusal Statute. This means that if you have a prior DWI or Refusal conviction, it will count to enhance your sentencing exposure.

  1. What if my “rights” were not read?

This is a very common question. Police do not have to advise you of your “Miranda” Rights (including your right to remain silent) during roadside interrogation (unless the interrogation takes longer than is necessary and turns into a “de facto” arrest). Being taken into custody is generally what triggers Miranda warnings to be given.

If your rights were not read and they should have been, your case will not magically be dismissed on a so-called “technicality.” The utility of a Miranda warning failure in a defense arsenal is that any statements you made may be subject to being suppressed (i.e., excluded).

  1. If I have an out-of-state DWI conviction, will it count in New Jersey as a prior offense?

An out of state conviction for a DWI law of a “substantially similar” nature will constitute a prior offense in New Jersey. It is, however, possible to exclude the out of state conviction by proof that the conviction was based solely upon a violation of a proscribed BAC of less than .08%. Sometimes, a prior conviction does not show up in a defendant’s driving history. This presents an extremely delicate situation. The State has the burden to prove each element of the offense and has the burden to establish prior offenses. A lawyer has an ethical duty of candor to the Court and the Prosecutor, and if asked directly by the Judge, a defendant risks a charge of perjury or contempt if he lies. On the other hand, a defendant has an absolute constitutional right to remain silent including at sentencing (to “take the fifth”).  Also, a lawyer owes allegiance to his client not to reveal privileged information (the lawyer can and ethically assert “attorney-client privilege” concerning the knowledge of a prior offense. This scenario presents a most uncomfortable position for defense counsel.  However, through a careful balancing of the opposing duties, and careful and ethical advocacy, the prior offense can usually be neutralized.

  1. What if I am licensed in another State and am found guilty of DWI in New Jersey?

New Jersey Courts only have jurisdiction (i.e. the authority) over your driving privileges in New Jersey. A New Jersey DWI conviction will usually be shared with the State where you are licensed. Thereafter, that State generally can take action against your driving privileges there – independent of what happens in New Jersey. This is known as the law of “reciprocity.”

  1. What will happen if I am convicted of DWI or Refusal to Submit, lose my license, and drive during the period of suspension?

If you are convicted of driving while suspended, the Court must (1) fine you $500.00, (2) suspend your driving privileges for one to two years, and (3) order your imprisonment in the county jail for 10 to 90 days. The driving while revoked charge (N.J.S. 39:3-40) when the reason for the revocation is a DWI or refusal conviction presents a challenge. There are in my experience, defense issues and angles whereby the jail term can be mitigated, or the charge itself can be defended or downgraded.

  1. Is a New Jersey DWI conviction a crime?

No, a DWI in New Jersey is classified as a motor vehicle (traffic) violation, not a “crime”, “felony”, “misdemeanor”, or “disorderly person’s offense.” This is a very common question. I am asked this question at least once a week. Some law in New Jersey refers to an NJ DWI as a “quasi-criminal” offense; however, that classification has to be read in context. The charge is “quasi-criminal” to the extent that a DWI-Defendant is entitled to the same constitutional safeguards that Defendants facing crimes have. The prevailing law clearly regards the offense as a traffic violation.

  1. Should I hire an attorney?

DWI in New Jersey is extremely complex, 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 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, and prepare your case for trial.

Be apprehensive of counsel that a DWI case cannot be won. That pessimistic attitude is borne from the lack of knowledge of the intricacies of DWI law, and the lack of experience trying (and winning) DWI cases. You should, likewise, be suspicious of counsel that paints too “rosy a picture” since that attorney may be primarily motivated by his interests and not yours.

If you choose an attorney, you should choose one who is qualified and experienced (including DWI trials) in this very complex area of law, who keeps abreast of the laws relating to DWI, and one who is going to thoroughly and diligently review and prepare your case to the end that you obtain the best and most aggressive possible defense.

You should also look for a lawyer who is passionate and committed to his profession, not one who views your case as part of being on the proverbial “grind-stone.” There is no substitute for passion and commitment in any profession or trade – these motivating qualities lead to a quest for excellence.

Most importantly, you should look for a lawyer whose practice is focused on DWI Law. If you needed heart surgery, you would seek out a heart surgeon, not a generalist. Likewise, you will be best served by hiring a focused DWI Defense Lawyer for your defense, not a generalist. See Tips On Hiring A Lawyer For Your New Jersey DWI Case. And THE SMART CONSUMER GUIDE TO NJ DWI LAWYERS FOUR THINGS THAT YOUR LAWYER MIGHT NOT WANT YOU TO KNOW.

If you have any questions, you are welcome to call me:

Office: 973-994-3732
Cell: 201-404-8990