Answers to New Jersey DWI Questions
My license was suspended for 7 months due to DWI.
I was told I had to get the breathalyzer put in
my car to get them back. It's been two years. Do
I still have to get a breathalyzer put in to get
them back. I have no other incidents pending.
A person did not complete the requirements to
re-obtain their NJ license after their second
DUI charge, and moved out of state. What will
the state do to this person if they come back.
They have not paid fees or completed the
First, the Defendant's license (or right to
drive in NJ) will be indefinitely suspended
until he/she complies. Second, there will be a
warrant for his/her arrest for contempt of
"I was convicted of a DWI in 2007. I am online
requesting records on a website and I need to
answer the following question:
If you are
Requesting Records containing personal
information, please select 1 option to the
right. Under Penalty of N.J.S.A.
2c:28-3, I certify That I (select option) been
convicted of any indictable offense under the
laws of New Jersey, any other state, or the
Have Have Not
What is the correct answer?"
A DWI in New Jersey is not
a criminal (indictable) offense. The correct
answer is therefore "have not."
Hi. I have recently been stopped n failed a breathalyzer test. I got 0.09. What
are my chances of getting it dropped to reckless driving??? Do I stand a good
change. I have recently received a criminal justice degree and joining the Air
Good Morning. Because there is no "plea bargaining" in DWI cases, you cannot merely
get a DWI "dropped" to a lower charge such as Reckless driving. Having a DWI amended
to another charge requires evidence showing that the DWI charge cannot be proved
beyond a reasonable doubt. I have achieved this in a number of ways through the many
cases I have defended. Achieving this is dependent on a number of variables
including the specific facts of your case and a properly prepared defense.
I had my second DWI in 1990 is a next conviction a first offense?
Currently, NJ Law would regard a subsequent conviction as a 2nd offense.
My question is my son was given a DWI, reckless
driving, tinted windows and speeding tickets.
We went to court, he was assigned a public
defender (since he is unemployed) who will then
defend him. But my question is, since he was
not convicted of a DWI, is he still permitted to
drive his vehicle until he goes to court?
Thank you, Jean
Yes, in New Jersey unless and until there is
a conviction (for DWI), a Defendant is permitted
to continue to drive.
My son wet to jail after 3 DWI convictions. I would
like to know if they are considered a felony. No one
was ever injured or involved in any of the arrests.
My son is having a hard time getting a job and we
think this might have something to do with it. Thank
Good Morning. No, a DWI in New Jersey is not
considered a felony or a disorderly persons offense.
A DWI in New Jersey is classified as a traffic
I have a friend that just got his fourth dwi in less
than seven weeks. I cant find any penalties for more
than three. How does the state of nj handle these types
of repeat offenders?
The New Jersey DWI Statute (N.J.S.
39:4-50) classifies 3rd offenders the same as 4th or
Hi I got a DWI couple days ago and my BAC was .27% does this
mean definite jail time? Thank You.
Assuming this is a first offense, jail time is not mandatory
(definite), but discretionary. Under New Jersey DWI Law, a Court
may sentence a defendant to up to thirty days in jail for a
first offense. Jail time is rare for a first offense; however, I
will always approach a case with a high reading (over .15% - and
certainly one over a .20%) with caution to best protect my
I was arrested for DWI while sitting in my parked vehicle. Open
containers were found in my vehicle. I refused the field test
due to a bad hip & a previously displaced knee. while in the
staion an officer (rookie) was being supervised by another as he
read me a statement regarding the BAC law, then asked me if i
understood. I replied " im sorry officer, but i did not." then
asked " could you please read it once more for me?" at that
point the supervising officer shouted " NO he can not!" Feeling
helpless & confused, I thought it would be best to refuse! It
was as if i was signing a contract I couldnt read! Left in the
dark, i was then charged with refusal. Can they do this to me
without giving me the understanding? I had little Idea of what
any of that meant, & after respectfully requesting clarity, I
New Jersey Implied Consent Law provides generally as
follows: The State must establish (1) a lawful arrest
following probable cause for a defendant's arrest for DWI,
(2) reading of a standard statement of
rights/responsibilities regarding providing breath samples,
(3) if an ambiguous response is given after the reading,
then a showing that a second portion of the statement was
read to the defendant, and (4) that the defendant said
anything other than yes I will give samples.
your specific question is whether the police are required to
read the same statement over, the answer is no. Likewise the
police are not required to allow you to read the statement
yourself. There might be defenses that are fact-specific and
will require you to confer with counsel who can review the
entire file and give you more tailored response.
I was recently given a ticket for DUI but not arrested. I was
driving down a local road seen I pulled over to the side and
parked . The cop car then pulled next to me and ask questions
like why I was there and so. So the next step was the officer
asked me to get out of the car to give me some field sobriety
test I told the officer that a day before I injured my ankle and
sprained my ankle. I proceeded to take test not sure name it is
when u take a few steps then turn around as I went to turn I had
extreme pain from my ankle. And could not proceed. He then told
me to do the one leg test I lost balance on that. He then told
me to go to my car gave me a ticket for DUI but never gave
breath test.I was about a block from my house I told the officer
and he let me drive my car home. How do I get a ticket for DUI
with no breath test and only 2 field tests in which I was
injured and have documentation from the hospital the day before.
And then told by the officer that I could drive my car home and
he would follow me and not arrested?
you were charged with DWI - not convicted. The Police can charge
any offense, including DWI. The State must however, prove their
case beyond a reasonable doubt to gain a conviction. Second, the
State does not need breath tests to convict for DWI. However,
the other evidence (including field sobriety tests) must prove
to the fact-finder (the Judge) that the Defendant was under the
influence of drugs or alcohol. It does seem unusual that you
would be allowed to drive home after the event (that is against
procedure) and without a breath test (that also is against
procedure). However, in the end, the case will hinge on whether
the evidence is sufficient to prove your guilt beyond a
Is it true
that the breath analyzer must be administered twice, and
results be in a narrow margin for it to be used?
The "Breathalyzer", used in New Jersey, must be
administered two times within fifteen minutes, with
samples within .01 of one another -- the lowest of the
two reading is used for proof purposes.”
This is the URL of where it appears on your
This was ruled incorrect if NJ firmware 3.11 is
used by the New Jersey high court; it ruled in State v.
Jane H. Chun, et al. the 4 tests, two per blow, must be
within . 0.005 percent BAC from the mean or plus or
minus five percent of the mean whichever is higher. The
state must prepare “Worksheet A” for a two blow test.
The court stated;
“To the extent that Firmware version 3.11 took advantage
of an explanation of the tolerance range in Foley that
inadvertently doubled the permissible range, however, it cannot
be sustained. We therefore direct that for future firmware
revisions, the device be programmed to fix the tolerance range
to be plus or minus 0.005 percent BAC from the mean or plus or
minus five percent of the mean, whichever is greater, in order
to ensure scientifically accurate, admissible test results.”
Hi (again). The question was an older question involving the
"breathalyzer" (a breath testing device that was used thorough New
Jersey; the breathalyzer is now phased out). The answer was and is
still is the correct state of the law with regard to that machine.
The case you reference (State v. Chun) and the requisite tolerances
deal with the "Alcotest", the new breath test device in use in New
You mention a refusal is not considered an offense for
sentencing according to State v. DiSomma. This was
overturned in STATE v. CIANCAGLINISTATE Argued Oct. 27,
2009. -- January 07, 2010
Correct, when the question was asked in this forum, the
state of the law provided that a prior nj refusal to
submit conviction was not a prior under the nj dwi
statute. The law has since changed so that a prior
refusal conviction is a prior under the nj dwi statute.
That ruling is however, under review by the NJ Supreme
Court - so the law can shift again.
My cousin who is 21 from pa got stopped in new jersey for
speeding 21 miles over the limit in a rental car..... as he
conducted all test for the officer correctly (I video
recorded it) he got arrested and his bac was .12 after 9
times of the test......what's the penalty for first offense
and also can the recording be evidence in court? Thanks
The video from the patrol car, and from the station (if
one exists) can be used as evidence by the prosecutor or
In your experience, have you ever
been able to reduce the license suspension on a first
offense with the BAC being .12? Is the amount of time the
license is suspended something that the judge is able to
reduce, if they were so inclined?
Afternoon. If the .12% reading comes into evidence (or if
there is a guilty plea which concedes the reading), the
license suspension would be for a minimum period of
7-months. I have, however, been able to get that license
period reduced for clients when I have been able
to exclude the Alcotest readings out of evidence. In those
cases, I have been able to keep the license loss down to
90-days. So, in order to accomplish the lesser license loss
(90-days), a successful challenge to the breath readings is
If a person had a prior conviction as a
minor under NJSA 39:4-50.14, would this count as a first
time should he be charged later on under NJSA 39:4-50 as an
adult? Thus my concern is whether one would be treated as a
1st or 2nd time offender in NJ for this new charge.
is no specific law on the issue (and thus the issue is
open to interpretation by Courts), I believe that a
prior offense for driving a vehicle underage (under 21)
with a BAC of .01% or more is NOT a prior offense under
the DWI laws. Based on the analogous law in this area,
and a reading of both statutes (4-50 and 4-40.14), I
have successfully advocated on behalf of my clients,
that the underage drinking & driving statute is not a
My son was in a car accident in New Jersey where no one was injured.
The car was totalled and there was some minor damage to property ( a
tree and small stone wall). He was taken to the hospital where they
drew his blood. He is 19 and his blood alcohol reading was .02. His
blood was further sent to the state for testing. He is being charged
with DWI, this is his first offense.
My questions are:
(1) Is DWI a crime or a misdemeanor?
(2) Did they have the right to take his blood without his consent ?
(3) Did they have the right to send it on to the state for testing
without his consent?
(3) If consent was given while he did not have the mental capacity to
do so, would that consent still hold?
(4) Why was he charged with DWI and not DUI?
Hi. DWI in New Jersey is
classified as a traffic offense. As such, it is not a crime
or misdemeanor. The police have a right to take blood as long as
they have a good
faith belief that the defendant is driving while impaired. This
is known as probable
cause. They likewise have a right to send the blood to the
laboratory for analysis.
Lastlyn DWI and DUI are the same thing in New Jersey.
Last night my son was pulled over for a headlight being
out. He had had a beer just before leaving the party. The
officer smelled this on his breath and told him to get out
of the car. There was no problem with his driving and he
passed the in field test. He was instructed, not requested
to do a field test. He was taken back to the station for
the breath test which came out to 0.08. The other officers
in the station were ready to just send him home because he
exhibited no signs if intoxication, but the arresting
officer would not let up. My son has a clean record. I read
that there are problems with the breath test if someone has
had a drink within 30-60 minutes of the test because of
residual alcohol in the mouth and throat. Can they convict
on the breath test alone or does there have to be other
signs of intoxication? Can other officers be subpoenaed. Is
there any chance to beat a dwi in NJ?
Thank you fro any help.
Hi. In answer to your questions, (1) residual mouth alcohol will
adversely impact a breath reading "Alcotest"); however,
procedurally in New Jersey, the Alcotest Operator is trained to
wait twenty minutes from the last injection of alcohol before
administering a test - that is the time that it takes for
the mouth alcohol to dissipate, (2) the State can convict with
either a valid breath reading of .08% or higher, or observations
showing impairment; however, in order to arrest and
require breath samples, the police must have a reasonable basis
to believe the defendant was driving while intoxicated (known as
"probable cause"), (3) the officers can be subpoenaed, but the
State has the burden to prove their case, and they will need the
officers more so than the defense in most cases, and lastly, (4)
there are defenses to a DWI charge.
my husband received a dui in NJ some time around 1983-4. We
non longer live in N.J. moved in 1987 but recently he was
contacted by a collection agency saying he owes over $4,000.
He had paid the fine back then and certainly has not retained
any of the documents to support this. Can N.J. now come after
NJ can seek to collect the surcharge by entering an official "judgment"
on record in NJ. That judgment can be enforced in your home state (e.g.
wage garnishments, bank levies, etc.). The judgment can also have an
adverse impact on your husband's credit.
Does New Jersey have an
is an acronym for "Accelerated Rehabilitative Disposition." This is a
diversionary program available in Pennsylvania. New Jersey does not have
a diversionary program for DWI offenses. For other charges, there are
diversionary programs for first time offenders (e.g. certain drug
charges in Municipal Court ("conditional discharge") and some offenses
in the Superior Court (Pre Trial Intervention). However, currently there
are no such programs for DWI offenders.
I have a questions my sister has two dui in pa didn't go to
court yet for the second in pa...she goes in jan for that. Now
she got another in phillipsburg, nj is that going to count as
third or two in pa and one in nj. THanks for your help.
will look at a defendant's driving history, and look
specifically at convictions only in determining the sentence.
recently got a DWI (.08) when he was driving home from dinner and
did have 1 beer with his food. A state trooper flew up on him making
him nervous , as he tried to move over noticed he couldn't because
of another car next to him. As soon as he did this the lights when
on. He was told he swerved and could have cause an accident. He was
asked to take test over and over until they saw something wrong.
However they told him to hold 1 leg up and count unless told to
stop. He did this and when he got to 30 he put his leg down and was
told to get on the hood.
Now back at the barracks was held for an hour while the fine boys
tried to get the breathalyzer to work.Was then driven to another
Barracks to use the test there. Finally took the test and it came up
0.08. Does he have a chance of getting this thrown out? Thank you so
impossible to adequately assess the case against your brother
without reviewing all of the police reports, records, and videotape.
The procedure that follows a NJ DWI charge is contained here:
Generally, the one field sobriety test
given to your brother is known as the One-Leg-Stand (test). It is a
standardized field sobriety test, meaning it should be administered
with a standardized set of instructions using standardized clues to
assess performance. If the test is not administered properly, the
test results are, according to the National Highway Traffic Safety
Administration, compromised. With regard to the alleged .08%
breath reading, the State has the burden to show by clear and
convincing evidence that the Alcotest machine was operating properly
and operated in accordance with accepted procedure. These issues
generally would have to be thoroughly reviewed by a competent New
Jersey DWI Lawyer to properly assess the case.
My boyfriend was arrested for a dui in New Jersey. He
claims his car was stolen at the bar, when he went out to find it he
found it crashed on the curb. the police officer found him and
claimed he was the one that crashed it. To make a long story short.
the officer never saw him behind the wheel, never read him his
rights, gave him one breath test, and ignored him when he told him
he had caps on his teeth. The officer claimed he had powder
discharge from the airbag on him. We called the car dealership and
found out that model of car's airbags have no powder in them? His
lawyer claims he can get the dui eliminated from evidence but so far
has not even requested the video tapes of the test from that night.
in fact he wants my bf to request them. he hasn't even tried to
defend the fact that he wasn't behind the wheel or the airbag info.
My question is, is this lawyer doing his job correctly, can he get
the test eliminated if performed incorrectly, and what does this
mean for my boyfriend? Thank you so much.
Hi. First, procedurally, the State (in effect, the
Police, through the Municipal Prosecutor) have an obligation to turn
over relevant reports, records, and other materials (including
videotapes) to the defense. This procedure is referred to as
pre-trial “discovery.” The practice is for defense counsel to
request, compel, and obtain (on his client’s behalf) the production
of the videotape(s).
The State has the burden to establish the element of
“operation” (of the motor vehicle) beyond a reasonable doubt to
obtain a conviction for DWI in New Jersey. It might be that given
what is before your boyfriend’s lawyer, the evidence in that regard
is weak. Without seeing the file, it is impossible for me to assess
the issue. For a thorough and scholarly discussion on the issue of
operation in the context of a New Jersey DWI case, see this link:
I am not going to criticize his lawyer because I do
not know the entire history, and jumping to that conclusion would
not be fair. As far as the Alcotest, the State has the burden to
show that the test was administered properly - i.e. consistent with
proper operating procedure. There might be other defense issues -
such as the “caps” that may create defenses. Again, without seeing
the file, it is impossible for me to give you tailored guidance. I
think your boyfriend should sit down with his lawyer, and go through
all of his concerns.
"I was arrested almost 3 yrs ago for a DWI and when I went to court I
was one of the many people who heard that the breath test was invalid
and that they were looking over the tests to see if it was valid. This
happened to a bunch of people here in NJ. Anyway, I requested a "STAY"
on my license until the tests results were cleared up. I paid my fine,
went to the class and now it's almost 3 years later and they are calling
me back to court to suspend my license for 7 months. I havent even
gotten so much as pulled over since that day. Is this something I can
fight to keep my license? Even though I was never suspended yet I could
have served my suspention time 4 times already. Any input would be
You have a right
to fight the license suspension. It is incumbent upon the defendant to
raise possible issues. That is to say, the defendant (through counsel)
must make the court aware of the Alcotest (the new breath machine)
defects/issues. One has to review the reports and records and assess the
State's case to determine whether there are any defects. So, whether
there are any issues depends on a review of the State's evidence. But,
unless the issues are raised before the Court, the Judge has no
obligation to conduct an independent review of the matter.
I have convicted as DUI/DWI in
NJ in June 2007, apart from this I got two more tickets (Reckless
Driving, Unlicensed driving) I paid all the fines and took IRDC classes
in NJ. My question is Now I am applying a job in (CMM level big company)
PA state, Now they are going for Background and criminal check, will it
be effected on my employment? Reply soon
Hi. This is a common concern
for people who are facing a NJ DWI charge or who have been convicted of
DWI. I cannot say for certain whether the DWI conviction will have an
adverse affect on your employment because I do not know what your
employer is looking for and what their criteria are. However, a DWI in
New Jersey is not a "crime" - it is a traffic violation. The DWI should
not show up on a "criminal background check." The DWI will however, show
up on your motor vehicle history.
"does the police need my
consent to take a blood test? I did not want it and asked
for breath instead. The officer said he had probable cause and
need no consent from me so he brought me to the hospital and 4
people held me down to draw it is this ok for them to do? They
said that the probable cause was that i had a head injury and he said i
was unable to walk, aFTER ALL I WAS PULLED OVER FOR SPEEDING
AND NOT INVOLVED IN AN ACCIDENT and was never asked what happened
to my head why i had a cut so he just took me away assuming i
feel. Was that good enough for them to force the blood out of me..
The police do not need
consent for a blood draw. However, they need to have "probable
cause." That means they have to have a good faith and reasonable
belief in guilt to draw blood. The taking of blood is in effect a
search and seizure that the constitution says must be predicated on a
good faith belief in guilt. In your case, the issue has to be
presented to a judge by way of a
motion to suppress. That means that the judge will have to assess
whether the police had a reasonable basis to believe you were
guilty based on the limited indicia you note. Most Courts will give the
police some latitude in these cases. The cops cannot be expected to
conduct roadside tests on someone who is injured. However, you do
not state whether there was other indicia like bloodshot / watery
eyes, smell of alcoholic beverage. I do however, note that
speeding is not a common driving pattern of someone who is drunk
One would however, have to review the file carefully to give you a
more tailored and accurate assessment.
just got my 3rd offense and was not given a feild test due to probable
cause so they say, I had a cut on my eye that was from an injury way
before i was pulled over for speeding. so the officer states that as his
probable cause. so they take blood in which i was refusing cause i
wanted a feild sobriety or breathe test but they held me down and drew
the blood. Was that right to do? I
was taken to the hospital due to an injury that the officer never asked
what it was from does that throw out his probable cause? my blood
alcohol results were analyzed 9 days after whats the chain of custody
procedure? should i know how my blood was handled from the time of
to were it went each day etc.?"
Blood cannot be taken by force - such
would be illegal (unconstitutional) and the blood cannot be used at
trial. The issue must be presented to the Court by way of a motion to
suppress. The State should turn over chain of custody documents to the
defense as part of pretrial discovery. However, a nine day delay for the
State to conduct the analysis is not unusual, and frankly, nine days is
a fats turn around.
"Is a conviction of 'baby dwi' uderage
DWI a prior conviction for sentence purposes?"
The so-called "baby dwi" a/k/a/ a
"kiddy-dwi" (underage drinking while driving) is not a prior offense for
purposes of the dwi statute.
"what is the difference between a
regular (an adult) and one for an underage dwi in new jersey? Is it true
that all records for underage dwi are confidential? are there any
benifits to recieving an underage dwi as oppossed to being charged as
NJS 39:4-50, the NJ DWI statute
prohibits driving while intoxicated or with a blood alcohol
concentration of .08% or more. NJS 39:4-50.14 prohibits a person who is
under the legal age for buying alcohol from driving with a blood alcohol
concentration of .01% or more. The threshold for a conviction under NJS
39:4-50.14 is much lower than for DWI. A conviction under 39:4-50.14
would be preferable, given a choice, over a DWI conviction. The records
are not however, confidential.
a person got his first DWI 12 years ago, then another one 5 years ago,
and another one six months ago, what would the last one be? His
second or third offence? If his first offence was over 10 years ago
does this mean his latest is still counted as his second offence?
Thank you for your help.
would be a 3rd. The law currently is that a ten-year gap between
offenses steps down the offense one level. The gap however, is
the gap between the current nj dwi offense and the one immediately
prior. Therefore, where a the gap between 2nd and 3rd offenses is less
than 10-years, it would be a 3rd dwi (offense). This is even
though the 1st offense is over ten-years old.
Does the State of New Jersey offer hardship drivers license (for work purposes) to those convicted of their 1st offense Of DUI/DWI?
When a person is caught driving while their license is suspended due to a DUI, is it considered a traffic violation or a criminal offense?
A traffic violation under N.J.S. 30:3-40.
My daughter had a DWI in NJ over 12 years ago. She never received notice of a court date, license suspension, etc. She does hold a Va. license. She has just moved to Arizona and was told that because of the DWI in 1993 they will not issue her an Arizona license. She did not even know it was revoked. She has not had another DWI since and her driving record is clean.
Is there a statute of limitations in NJ for DWI, and if not, what would she have to do to get this cleared up?
The "statute of limitations" refers to time periods for tickets to be issued. Currently, a dwi charge must issue within 90 days of the alleged offense. The time limit was 30 days.
This time limitation is distinguishable from the time limit that a case must be concluded. That time period generally falls into the category of "speedy trial" right(s). Every Defendant has a constitutional guarantee of a speedy trial. Whether there has been a violation will hinge on an analysis and weighing of four factors: (1) length of the delay, (2) reason for the delay, (3) whether the defendant asserted the right to a speedy trial, and (4) prejudice.
The case at this point should be placed back on the Court's calendar. This is usually done by posting bail with the Court. Your daughter's counsel can and should examine the entire case and defenses, including the speedy trial issue(s). But, I suspect that the Court will show that notice was sent to your daughter thereby negating the speedy trial defense.
My first DWI was in 1983, my second was in 1996, and my third was in 2005. My second offense was counted as a first offense since it was over 10 years. Should my most recent offense have been counted as a third offense?
The Court will look to the gap between the 3rd and 2nd. If, as it appears in your case, the time from offense to offense is less than 10 years, you are treated as a 3rd.
I got a DWI in Michigan 4 years ago,
which was reduced to open intox. I just got a DWI two days ago in New
Jersey. Will having two DWI's in a five year period assure loss of
license and/or jailtime?
The prior offense in Michigan will be
regarded as a prior DWI in NJ if the Michigan offense is substantially
similar to NJ DWI Law. Therefore, it would be necessary to investigate
the precise law that you plead guilty to in Michigan (what you refer to
as "open intox.") If the law there provides penalties for any
level of alcohol and does not require impairment, then it would not
count as a prior. If it is a prior and you are convicted or pled guilty
in NJ, the penalty is a 2 to 90 day jail sentence and 2 year license
My brother is charged with a 3rd DUI in New Jersey. It has been 9 years between the 2nd and 3rd. His breathalyzer tests came out as .07,.10 and .10. He is going to trial as it has been postponed a few times and the state postponed it twice. They have been trying to get it down to reckless driving since there is saporstein report involved and the police officer was incorrect with the breathalyzer. They were using the old system, there was video camera either. Is there a 60 day rule to settle this?
There is not a 60-day "rule" of law that requires dwi charges to be heard (in 60 days). There is, however, a 60-day guideline that courts attempt to adhere to. However, it is not uncommon, particularly in contested cases, to have cases go beyond the 60-day mark.
Each Defendant does, however, have a constitutional right to a "speedy trial." Whether that right has been violated depends on a weighing and balancing of four factors: (1) assertion of the right, (2) reasons for the delay(s), (3) length of the delay(s), and (4) prejudice to the defendant.
I JUST GOT MY THIRD DWI IN NEW JERSEY, BUT I REFUSED BREATH TEST THIS TIME. I'M MARRIED AND HAVE 2 KIDS. MY WIFE DOESN'T WORK ACTUALLY SHE SUFFERS FROM MULTIPLE SCLEROSES. I CAN'T AFFORD A GOOD ATTORNEY. WHAT ARE MY CHANCES WITH A PUBLIC ATTORNEY? CAN I AVOID JAIL TIME?AND WHAT HAPPENS IF I DON'T APPEAR IN COURT? THANK YOU VERY MUCH!
If you are convicted of dwi as a third offender, New Jersey law provides for a 180-day jail term. That jail term can be reduced by a maximum of 90-days with an IDRC approved in-patient rehabilitation program. The balance of the term (90 days) must be jail - or, in some cases, a jail alternative such as an anklet program, or house arrest. The jail can also be avoided if the prior convictions can be attacked (i.e., vacated).
Public defenders often get a bad rap. Many are qualified and devoted to what they do. As far as chances, dwi charges are not easy - your chances obviously are better however, with competent counsel. If you fail to appear in Court, the Judge will issue a warrant for your arrest. Good luck as you try to navigate through what sounds like a stressful situation for you and your family.
I work for the federal courts, and we were wondering if a person has a sixth conviction for DWI, are the penalties the same as for a third offense, and can all 180 days be served in an inpatient facility or only 90 of those days?
Thank you for your assistance in this matter.
The Statute (N.J.S.A. 39:4-50) provides for penalties for a "third or subsequent violation" - thus, a 6th offender is treated within the same parameters as a 3rd. If the violation occurred after January 20, 2004, the 180 day jail term can be lowered "not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center."
I need to know if someone gets a DWI and this is their third but the oldest was over 10 years ago (first 4/95, second 6/98 & third 4/05)- would this still be treated as a 3rd offense or would it be treated as a 2nd offense?
Please let me know right away. Thank you!
This would be treated as a 3rd DWI in New Jersey. The Court looks at the gap between the 3rd and 2nd - because the gap here is less than 10 years, it is a 3rd. If your 2nd NJ DWI was more than 10 years from the 3rd, you would be stepped down to a 2nd NJ DWI offender.
In 1984 my one in-law was arrested for dwi in nj. He let his license go. Now he wants his license and dmv told him it cost him over four thousand dollars. Is this true?
The New Jersey Motor Vehicle Commission (NJMVC), formerly the New Jersey Division of Motor Vehicles (DMV) appears to have assessed him with a surcharge - $1,000.00 per year for three years as a result of the nj dwi conviction. The overage would appear to be interest. That was and is authorized.
I am wondering if a first time DWI offense is considered a criminal offense or a traffic violation in the state o NJ? I heard it was only considered a motor vehicle offense. Also, if it is considered a motor vehicle offense and not a crime, does the law make a distinction as to whether this offense is a major or minor traffic offense?
A charge of NJ DWI and/or a NJ DWI conviction is regarded as a motor vehicle violation. There are no specific grades of motor vehicle offenses in New Jersey contained in the
Statute(s). However, given the option(s) of "major" or "minor", a NJ DWI is definitely best be classified as a "major" (as opposed to a "minor") traffic offense. Further, at least one high court in New Jersey, in passing, called a NJ DWI charge a "serious traffic offense."
"Is it true that if I am given a ticket for a DWI in New Jersey, the cops have to bring me to court within 90 days of the ticket? I heard a rumor that after 90 days the court can't do anything."
Incorrect - there is no hard and fast time limit by which a NJ DWI charge must be concluded. A Defendant does however, have a constitutional right to a "speedy trial" in connection with a NJ DWI charge. Whether that right is violated requires weighing and balancing four factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) any prejudice occasioned by the delay.
"My son just confided that he
was pulled over for DWI in July of 2003. His first offense was in
1995. He paid all the fines attached with the first offense and
received his license back. He did not have his license when he was
pulled over for the second offense (it was not suspended - he just
didn't pay for the renewal). He did not show up for court for this
second offense. How does he start the process to handle this and
what is he looking at in terms of fines and penalities? Will this
be considered his 2nd offense for sentencing purposes?"
If convicted of nj dwi (as a
second offender which he would be considered), your son is facing
a mandatory 2 year license loss and 2 to 90 day jail sentence. He
provably has an arrest warrant for him that needs to be vacated
(by posting bail). Then, the case can be placed back on the active
trial calendar. This is not a very unfamiliar situation (failure
to appear) for experienced counsel to negotiate.
"I was pulled over and charged
with DWI a few months ago. At the police station they gave me a
breathalizer test and I heard the officer say that I had a .06 I
asked several times for copies of everything but never received
any of it. I am now going to trial and asked for discovery. The
police report filed is full of lies and they changed my BAC to .11
My question is is there any way to obtain the original test
results or is it just my word against theirs."
Sometimes there is a videotape -
the "original" test results must be recorded by the
breath operator. There is no permanent printout on the archaic
breathalyzer machine. If you asked for the results at the time and
were not given them, you have a good argument to exclude the
readings since you have a statutory right to the test results when
"Can a person be charged
with a DWI, if he is drinkin inside his vehicle. Additional
facts:The car was turn off; He was drinking on his "private
The State must prove that the
defendant operated or intended to operate the vehicle.
"if 90 day jail time is
mandatory in NJ for second DWI, does this need to be done all at
once or can the guilty party do this jail time on weekends?"
The jail sentence for a 2nd nj
dwi offense is 2 days mandatory up to 90 days (jail). The 2 days
can, in the discretion of the court, be served in the intoxicated
driver;s resource center (overnight). Some counties allow the jail
sentence to be served on weekends.
"I was drinking at a
friends party one night. My car was parked several feet down the
road on the other side of the road. While talking to a friend in
the front yard I glanced towards my car and it appeared to have a
flat tire. I walked down to my car opened the door to get a
flashlight out of my glove box to look at the tire and the police
pulled up behind me to see if I needed any help. I told them I was
at my friends house down the street, my tire looked flat and I was
trying to check it out. While we were talking they could smell the
alcohol. They had me walk in a straight line, etc. I was then
arrested for DUI. My question is how can I be arrested for driving
under the influence when I wasn't even in the car when they pulled
behind my parked car. The car was not running and there were no
keys in the ignition? Please respond to Thank you. "
The State must prove
"operation" of the car beyond a reasonable doubt. The
law allows them to prove it by proof of intent to operate or an
inference of past operation (while intoxicated). The cops can
charge and arrest on any facts - but they have the burden to prove
a basis for the arrest and the ultimate charge. In this case,
given the facts you describe, the State will have a difficult time
first DWI in NJ was 14 years ago, I just was arrested for a DWI
again, does the new one count as a second or is it a first since
the first one was so long ago?"
would be a first offense for sentencing purposes if you are
convicted or plead guilty.
I received DWI recently
and was taken to the station. When I asked the officer what my BAC
was he said I "doubled". He also mailed me a reckless
driving ticket a week later. I got pulled over for a tailight, not
for erratic driving. I cooperated completely with the officer and
was not being difficult at all. I'm assuming that i will have a
loss of liscense for at least 6 months. Is there any way to get
that reduced, i.e. to 3 months? Is there any way to get these
charges reduced? How much can I trust the lawyer? How can I tell
the difference between a good DWI and a can of paint with all the
lawyers out there?Please Respond.
The current law in New
Jersey is this if convicted of a first dwi offense - driving with
a blood alcohol concentration of .10% or more, license loss of 7
months to 1 year. If the State is unable to establish the
integrity of the breath or blood readings and if the other
observations are sufficient to show that you were under the
influence - a 90 days license loss. It is hard to say whether in
your case it is possible to get the sentence reduced to 90 days -
this would require a careful analysis of the written records and
reports on file, called "discovery." As far as you being
able to gauge a lawyer's ability and expertise see my
tips on hiring a lawyer for your nj dwi case.
Can you be arrested for
DWI in NJ without having road side test done?
Yes - but the State has
the burden to show that there was a sufficient basis to have
arrested you for nj dwi - called "probable cause."
I know the NJ limit was
reduced to .08 in Jan/04. Is that in effect now? I heard that it
was to go into effect in July/04.
It has been in effect
since January 21, 2004.
"does nj have a
program that allows a person whom drives for a company that will
allow him to drive during working hours only."
"I was driving home
friday after work the officer pulled me over for a headlight that
was out asked me to do the standard tests then took me in and gave
me a breathylyzer which said i was .08% this is my first offense i
have a clean driving record, I also hold an out of state license,
Florida. what are my chance of this getting dropped to a lesser
charge, Is there a possibility to pay a heavier fine do community
service in lieu of the dwi charge. any advice would be greatly
The so called
"legal limit" in New Jersey was recently reduced to
.08%. Getting DWI charges "dropped to ,,, lesser charge[s]"
is something that the State will do if they are convinced they
cannot sustain their burden of proof. The "chances" of
that happening depend on many factors - including reviewing the
reports and records on file. But, you should know that DWI charges
are not routinely reduced (like other charges). They are dismissed
or reduced in rare cases where the State is unable to sustain
their burden of proof.
"what is the time
limit for nj dwi records"
A nj dwi conviction
remains part your driving history permanently.
"Here is a question
that someone asked me, and frankly I couldn't give him an answer.
He asked if someone was riding a bicycle under the
influence...could that person be charged for a DWI just as if they
were driving a car?"
In State v. Machuzak,
227 N.J. Super. 279 (Law Div. 1988), the Court (Somerset County)
held that the DWI Statute (NJSA 394-50) clearly did not apply to
non-motorized bicycles. A Cumberland Superior Court also held that
the Statute was not applicable - see State v. Johnson, 203 N.J.
Super. 436 (Law Div. 1985). However, in State v. Tehan, 190 N.J.
Super. 348 (Law Div. 1982), a Court (in Somerset County) found
that a bicyclist could be found guilty of DWI, although the
license revocation could not be imposed.
Until a higher Court in
New Jersey rules on the issue, technically, the issue is
unfortunately, not clearly answered. Where as here, there are
conflicting Law Division Decisions (the Courts above the lower
Municipal Courts), the issue is technically regarded as
unresolved, although the Machuzak and Johnson decisions appear
better-reasoned that the Tehan ruling.
"I am applying for a
job and need to be able to prove that a first offense DWI is a
misdemeanor. The statutes are difficult to interpret. Can you
direct me to a statute that designates a DWI as a misdemeanor?
a common question. A conviction for nj dwi is a motor vehicle
offense - not even a misdemeanor. It falls under Title 39 of nj
laws - all motor vehicle offenses.
I was just arrested for
DWI. I got a talked to a lawyer and he said "well when we go
to court i can probably get the court to throw out the speeding
and careless driving tickets but the dwi one will stay...however i
may be able to get them to drop your .10 blood level to .08 and
have your license suspended for lonly 3 months instead of 6
months" My question is...is this true could he get me a 3
month loss of license instead of 6? I got pulled over in a 55
doing 65 in like another 2 hundred yards the limit goies up to
65...i passed my abc's and walking a straight line...i put my foot
down twice holdning it in the air...any info on this 3 month loss
would be great...please emial me i need help.
nj dwi law changed on January 20, 2004. The legal limit was
reduced to .08%. The penalties for driving with a .08% up to .099
include a 90 day license loss. For a .10% or more, the license
loss is 7 months. So, it is possible that if a .10% or more
reading is compromised, the license loss would be limited to 90
was driving to the emergency room due to pain I was having in my
shoulder before leaving for the hospital I had taken a muscle
relaxer called SOMA. En route to the ER I blacked out and hit a
telephone pole when police arrived I was not coherent (had
shoulder surgery 2 months prior) The officer escorted me to the ER
never told me I was being charged with a DWI but did ask if i
would take a blood test I said yes not thinking I did anything
wrong. 3 hours later when my mom got there he told me I had been
in custody the entire time. My rights were never read to me. How
can you be charged with a DWI for a legal drug and shouldn't
someone inform you that you are under arrest?"
Jersey DWI law prohibits driving while under the influence of
certain drugs (e.g., narcotics) even if they were prescribed. The
fact that the cop never told you that you were under arrest is a
non-issue. The failure to read your rights does not void the dwi
charge (this is a common question). The only effect is that if you
gave any statements in response to questioning, those statements
might be excluded from evidence (like an answer that you just
consumed the drugs).The real issue in these cases is usually
whether the state can prove a nexus between the drugs and your
"I had two dwi's
in nj over 25 years ago, I was just given a summons for my 3rd
does that count as 3 or back to 1 again"
dwi would be a second if you were convicted or plead guilty.
"Iwas pulled over at
the airport (port authority) 2 years ago and was charged with a NJ
DUI. I did not take the breath test. I also never went to court. I
know I need to clear this up. What am I up againist??"
probably have a warrant outstanding for your arrest and you nj
driving privileges should be indefinitely suspended. The process
is to rescind the warrant (usually by posting bail) and have the
case re-listed. A knowledgeable nj municipal court lawyer should
know how to accomplish this. If you had no prior refusal or dwi
convictions, you are facing 6 months to 1 year license loss for
the dwi and 6 months on the refusal - among other penalties.
"I got convicted of
DUI about a two months ago and then when driving one night about
two weeks ago got pulled over and issued a Driving While
Suspended. I have checked the penalties but just wanted to see wha
discretion the Judge would have. I don't know if my person
situation would have any affect but just to add to the
details here they are.
Prior to my DUI I have
had a clean license for over 10 years.
I just went through a
divorce and literally lost everything. My Family, My house, and my
money. Despite making almost 200K last year I am filing for
Bancruptcy and due to all these circumstances I have been in a
deep depression. I would not allow myself to admit this but after
this ticket I know I must seek professional psychological help.
Again, Just wondering
does any of that matter or am I losing my license for an
additional year and going to jail for 10 days?"
The license loss is
between 1 to 2 years - so the Judge has some discretion there. The
jail is 10 to 90 days so the Judge has some discretion there too.
In some cases Judges can impose jail alternatives - it depends on
the Judge and the Court. There may also be a way to win the case
or get a plea bargained disposition to something other than what
was charged - rare, but possible.
"How long will the
DUI be accessible on my DMV record to potential employers and
The record of a
conviction will remain a permanent part of your NJ driving
history. There is currently no way to erase it. Most insurance
companies will look
back three years for rating purposes.
there business permits or a hardship license in New Jersey for
someone who has lossed their license but works 2 jobs, is solely
responsible for a house, schoolage children, and an elderly parent
but does not have reliable transportation to commute because there
is not public transportation that runs 24 hrs a day,has a good
route system and is affordable?"
currently, there are no limited licenses.
"is there such a
thing as a restricted drivers license to go to work and school if
u are convicted of a dwi?"
not in New Jersey.
"I got two DWI's when I was 17
years old in New Jersey. So I had two convictions there. When I
was 21 I got a conviction in New York. New York treated it as a
first conviction. However I just got a letter from the New Jersey
DMV saying that my license has been suspended for the next ten
years. I guess they're treating it as my third conviction even
though it happened out of state. THe New Jersey DMV didn't mention
anything about surcharges or jail time in their letter. Are they
going to try give me more surcharges? Can they try to send me to
jail when though I was already convicted in another state?
Wouldn't this be Double Jeopardy? They can't charge sentence me
for the same crime twice, can they? I look forward to your
NJ cannot seek jail time.
However, the law allows them to seek a license revocation as well
the surcharges for an out of state conviction which is similar to
a nj dwi conviction. You should s/w counsel to see whether there
are defenses to the proposed action - you have a right to an
moved from NJ to IL. I did not get a chance to get an IL driver's
license. With a NJ driver's license, I was pulled over for DUI. If
I get convicted in IL, what happens? What will NJ do?... I no
longer reside in NJ..."
New Jersey will
seek a 6 month license revocation (assuming this is your first
offense), and impose yearly $1,000.00 surcharges.
"A third arrest. The
second arrest was over ten years ago. What is the worst case senario/ best case senario?
Best Case - Not Guilty. Worst
Case = second (nj dwi) offender status.
"Here is my dilemma: I was
parked one day in a park with a girl. To cut it short.
Cop found an open bottle of alcohol in vehicle that I WAS NOT
DRINKING. It was in my
house and I was give it to my friend because I wasn't using it. Well they gave a $200 ticket for an
open bottle of alcohol. I paid it. I tried
to rent a vehicle and I was not allowed because I have a DUI on my
record. How?? not
drinking nor breathalizer....can I fight that?
When you paid the ticket, you
plead guilty to the charge. The procedure
to fight the charge now involves applying to the court to vacate
(withdraw) your guilty plea.
There are two sections that the State could have charged you
with - either consuming the alcohol in the car (NJS 39:4-51a) or
simply possessing an open
container (NJS 39:4-51b). These are not DWI convictions - you need to confer with legal counsel to
review the matter further and assess your options.
There are time constraints in filing motions to vacate with the
court - therefore, you should
consult counsel without delay who can give you more detail
about your rights and time limits.
"I recently received a ticket
for not have my car registered. Which was fair considering
I was 10 days late in doing so. I was also charged because I did not have my license or insurance card
on me. Both are up to date. My questions
is do you have 24 hours to provide the paper work on insurance and
license. I was told I
would have to show up on the court date, and that the charge was
that I did not have them on me at the time (Statute No 39:3-29).
So it does not seem to matter whether or not I have the information
now or not. Will I receive
any points for this. Thank You"
There should be no effect on your
insurance for a violation of simply failing
to possess a document (39:3-29). There is no law to the effect that you can provide proper up-to-date
credentials within 24 hours. If you do have up
to date documents and were charged with for e.g. no insurance or no
license, the charges can be
amended by the state to simply not having them in your possession.
"I recently got a DWI in NJ and I am confused as to what is considered a first
or second offense. First off, I am a NJ resident. I received a DUI in PA 1 1/2
years ago, although my BAC was .04 I was underage at the time. I went through the ARD program, promptly did all community service, paid
absolutely all dues and have about 6 months remaining in non-reporting "probation" for this infraction. I am confused because I only lost my license
in PA (Im a NJ resident), and I could drive in every other state...and NJ DMV
was never informed, nor was my insurance company. Is that 1st offense in
PA held against me in NJ court in regards to my recent offense in NJ?
Will I be viewed as a 2nd offender or is my PA DUI not held against me in NJ? To
add to this confusion, I recently got a Drivers License abstract and my license is 100%
clean and in "good standing". Does NJ not know about the incident in PA nearly 2 years ago?"
The ARD program generally provides that if you complete it, there is no
conviction on your record. This is probably why the PA DUI did not carry
over to NJ - because NJ will only recognize a conviction. Your attorney should check the final disposition papers in PA regarding the ARD to be
"If someone is charged with DWI in another state, will s/he lose their license
in New Jersey? The state in which this occurred does not mandate loss of
license for a first offense."
If the law is substantially similar to nj dwi law, the nj dmv will seek to
impose a 6 month license revocation (assuming this is a first offense). The
penalties in the convicting state are irrelevant.
"If you were convicted of a 2nd dwi and the judge did not give the
community service would you still have to do it?"
No - the Judge's Order (Sentence) is controlling. However, the State or even the Court on their own, can correct the sentence.
"I WAS READING THE PENALTIES FOR THIRD OFFENSE D.W.I. IN NEW
JERSY. IT STATES NOT LESS THAN 180 DAYS IN JAIL. WHAT IS THE MAXIMUM TERM THAT COULD BE GIVEN.
THE PERSON WAS STILL ON SUSPENSION FOR HIS SECOND AND GOT HIS THIRD & FOURTH
IF THERE IS SUCH A THING."
180 days is the maximum term for a 3rd or more nj dwi offender. If,
however, the offender is driving while suspended for a dwi, there is a 10 to
90 day jail sentence. If there are injuries or death, then the jail exposure of
"On Saturday morning coming back from a party I was on the highway and
felt like I would throw up (I have GERD), I got off highway into town where I
live pulled in and got out, got back in car and fell asleep, police came and
after performing the sobriety tests was arrested for DWI, it was freezing cold
and I had just woke up - does this give me any defense to failing? I was
given the breath test twice they only told me one reading (.08) then the cop
told me I had to give urine sample which I did. I was charged with DWI and
reckless driving - will I be convicted on the dwi and can they insist on me
having a urine test without written consent? Thank you. "
Motorists are required to give samples of their breath, not urine or
blood. If you gave the urine sample, you must have consented by your conduct.
A written consent is not required. The cops asked for urine because they were
looking for evidence of drugs in your system. The State will probably have
impediments proving the dwi - even if there were drugs found in your urine
(unless drug recognition tests were performed by a qualified expert). However, it is
impossible to assess the state's case against you without seeing all of the
reports and doing a thorough investigation. A skilled and experienced dwi
defense lawyer can carve up the state's case - including using the issue of your
being tired effecting the field tests.
"If you had your 1st nj dui in 1988, your 2nd dui in 1990, then one just
recently 12/23/03. What offense would this be in court, and in the NJ DMV?
1st or 2nd offense in court? 1st or 2nd offense for DMV? 6 months or
2 years loss of license?"
Second offense under NJ Law - 2 year loss of license.
"Is there such a thing as having a NJ DWI expunged from the record?"
No - you cannot expunge a nj dwi conviction - it remains a permanent part
of your New Jersey driving record.
"I have a question concerning New Jersey DWI. If a person received a NJ DWI
charge is there anyway to get it expunged from their driving record? The
DWI charge was on April 2, 1988 and is still present on the driving abstract.
It would be most appreciated if you would reply to me. Please include if it is
possible to get the charge expunged and the process one would need to go
through to get it expunged. Thank you."
There is no procedure to expunge a nj dwi conviction.
"My friend was arrested for a nj dui while I was in the passenger seat. He
was in the drivers seat of my car and they have charged me with a NJ DWI
because I allowed him to operate it. At the time of the arrest we were sitting
in the car with the engine running, eating a couple of sandwiches. He failed
the breathalyzer and field sobriety test. I however, was not administered any
test and the police report barely acknowledges my existence. I did not plan
on letting him drive the car he just was in the driver seat because his sandwich was made first and wanted to go to the car. What kind of case do I
have, and what line of defense would be best?"
The question is not "what kind of case" you have. The primary defense
inquiry is always what the State's case is. The State has the burden to prove
your guilt beyond a reasonable doubt. This is a burden which never shifts.
Here, the State will have the burden to prove that you knowingly allowed
your friend to operate the car while intoxicated, a difficult burden. If you
have counsel, he/she should review the State's evidence (reports and records
on file) to better assess the State's case and prepare a strategy.
"I had a clean driving record before my 1st offense nj dwi. Will that help
with any leniency in punishment. Also, how likely is jail time for 1st nj dwi
offenders? I would choose any fine or alternatives over jail time. I'm told its
unlikely to get jail time on 1st dwi offense is that true?"
A clean driving record is considered by the court when sentencing.
Absent some exasperating circumstance (usually an accident with injuries), it is
highly unlikely that a court would impose a jail sentence for a first nj dwi
"I was pulled over the other night (Nov 8th) The officer asked me for my
drivers license and registration. Before I even got the documents out of the
glovebox he told me to get out of the car. I got out of the vehicle where they
directed me to the sidewalk. Before I even performed a field sobriety test he
told my passengers to find a ride home because I was going to jail. Is this
legal? The basically found me guilty (of nj dwi) before I even performed a
road test or breathalyzer.
Police cannot arrest someone for dwi in New Jersey without having a
reasonable and well-founded belief that the person is guilty - called "probable cause."
"How much time does the court have to respond to a NJ DWI appeal, and if
the court does not respond to your appeal does the case get discharged?"
Appeals from nj dwi convictions for are taken by the filing of an appeal
within 20 days from the judgment. The Defendant is obliged to order and obtain transcripts of the proceedings and usually file a written argument
called a brief. There is no specific time period for the court to hear the
appeal - however, a defendant does have a right to a speedy trial.
My son was given a DUI eighteen months ago in PA. He entered the ARD
program and had his driving privileges suspended for 15 months, 12 for the
DUI and an extra 3 months for being underage. He has met all the ARD requirements
and is about to get his driving privilege back and he has had his records expunged.
In all this time he has had no notice from NJ about his license suspension here. He has not driven in NJ and let his NJ
license expire until his PA suspension is lifted. We tried to get his driver abstract
from a company on line but they told him that his license number is invalid
and are giving his money back. What does this mean? He is going to renew
his license as soon as he can. He goes to school out of state and hasn't
been home when the DMV is open. I spoke to an insurance agent about getting
him his own policy and he told me that NJ can still take his license away.
Why would NJ take this long to notify him? If NJ hasn't gotten around to
suspending his license until now can he fight it? I'm sure NJ is going to
make him pay the 3 year surcharge but he has had no notice as to who and
when to pay. Does this ever end?
I am not sure why he would have let his nj license expire. In any event, it
may be that the diversionary program in PA did not report the matter to NJ
because it did not result in a conviction. NJ will act on out of state convictions. The delay in being notified by nj dmv is not a defense to the
action - that assumes that nj dmv will take any action at all.
"I have a couple of questions for you in regards to NJ DWI Laws and
Surcharges. This is my 2nd DWI in NJ, on my 1st (1996) I didn't have to pay
the $1000 per 3 year insurance surcharge cause I proved I was an out of state driver (PA)
when convicted. This time around I have to, WHY??????, in there booklet called
WHO IS RESPONSIBLE which they send to you it clearly states "those responsible are persons who at the time of conviction
hold a valid NJ license". I see no reason for me to participant in there (NJ)
insurance programs when I am not insured or licensed in that state, which I
understand was set up to help licensed NJ drivers convicted of DUI or DWI
or other traffic violations within NJ to obtain affordable insurance rates. So
my question is how can NJ DMV change it rules to fit them when they see it
fit to. Question 2, How can NJ DMV issue me a NJ drivers licenses number?
If I am neither a resident nor a valid NJ Licensed driver, I am a resident of
PA and already have a valid PA License number. To me this would mean that
I have two valid licenses, one in PA and NJ, based on having 2 numbers, wouldn't that be illegal to hold two licenses
in 2 different states. Also NJ has put me on the NDR list and I can't renew my PA license (my privilege to
drive in NJ has been suspended not the whole country), plus the NJ surcharge and billing department has added an addition
year to my suspension, which was court imposed at 2, but has now gone up to 3, DMV
states until I payoff my surcharge off which would be in 3 years, that is how
long I am suspended for. How can they add an additional year onto my suspension? Seems DMV can do what it likes and my rights as a driver and
person have gone out the window. It also seems that the offices of DMV, the
Court, and Surcharge division have no clue what the other is doing, the right hand has no clue
what the left hand is doing?"
Based on a 2001 ruling
(http://lawlibrary.rutgers.edu/decisions/appellate/a2892-99.opn.html), nj can surcharge
out of state drivers convicted of nj dwi. NJ appears to have merely given you a license number for tracking
purposes only. You can seek a payment plan for the surcharges and seek reinstatement of your privileges
based on the payment plan being maintained.
"I was diagnosed with Bipolar illness in 2/00 when I was 30year old. I had
this condition my whole life. My doctor informed me that I used drugs and
alcohol to self medicate before I knew I was bipolar and medicated. Now I am
under a doctorâ€™s care and medicated. Things are much better. Before the
medication I was not thinking logically and got a 4 NJ DWI arrests. It
was clear I had a mental condition. I lost my drivers license and finding it
extremely difficult to survive without it. It just adds to my depression. I live
in very wooded area and public transportation is very limited. What I need
to know is because I am a different person since the treatment and medication, is there any law that would enable me to
New Jersey DWI Law does not allow legally imposed license revocations to be reduced even in compelling
cases such as yours.
"Is a nj dwi dui a misdemeanor?"
A nj dwi dui conviction is a motor vehicle violation.
"I was in an accident in NJ, it was raining and the roads were wet, I struck a
pole, and I left the scene of the accident and I found a police Officer, and I
reported what I did. I was then questioned, I admitted that I had been drinking, I was handcuffed and taken to the
police station and given a breathalyzer test. .13 is what it read. I have never gotten into any trouble
with the law in my life. I am presently working my husband is not and I have
a 13 year old child at home. My main question is what is the minimum time
for me to lose my license?"
A first offense for nj dwi carries with it 6 months to 1 year loss of nj driving
privileges. If you were charged with leaving the scene of an accident with
property damage only (no personal injury), there is a 6 month mandatory loss of driving privileges.
"How will my nj dwi record stay on my insurance after my license in
reinstated and will the points on my driving record ever disappear as a result of a good driving record here on in?"
A nj dwi conviction remains a permanent part of your NJ driving record.
While there are no NJ DMV points associated with a nj dwi, there are insurance eligibility points. Most insurance companies will look back three
years for purposes of insurance rate increases - a nj dwi will generally result
in your having to buy insurance through the nj assigned risk plan.
"Is a New Jersey DUI - DWI Considered a Felony or Misdemeanor?"
A conviction for NJ DUI - DWI is neither - it is a motor vehicle
"What ramifications are there when a father is picked up for drunken driving
and illegal lane changing and his minor child is in the car with
The State can charge, among other things, a separate offense of DWI
with a minor present (There can be other criminal charges filed - but this
would the most common in this fact pattern). This offense is classified as a
disorderly person's offense in New Jersey (some States refer to these offenses as
misdemeanors). If convicted, the defendant is exposed to up to 6 months license
loss, up to 5 days community service, up to $1,000.00 in fines, and 6 months
"Is there A psychiatric defense for NJ DWI charge?"
NJ DWI is considered a "strict liability" offense. This means that culpability
attaches regardless of the driver's state of mind or intent. State of mind type
defenses such as insanity have been stricken as invalid in the context of a
NJ DWI charge.
"If you are a passenger of a drunk driver in new jersey and you yourself are
also under the influence can you be fined as well should the drunk driver
get pulled over?"
Only if the passenger is proven to have allowed the operation. Allowing a
driver to operate drunk is a violation of nj dwi law.
"I got a nj dui in 1992,and never went to court in nj.I have been living out
west ever since and can not obtain a drivers license. Is there a statute of
The statute of limitations applies to when a charge can be filed - not
concluded. In the case of a NJ DWI charge, the State currently has 90 days
to file the charge (the law was 30 days - recently amended).
"is there a dawn till dusk license in New Jersey."
No - the license revocation is absolute with no work or other special licenses.
"I would like to know if a NJ DWI is considered a criminal offense"
No - a NJ DWI charge is a motor vehicle violation.
"If a person was convicted of 3 dwi's over 12 years ago. Then gets one after
the 12 years what would he be sentenced as 1st or second or 3rd offence or 4 th offence?"
At best a third offender - which for sentencing purposes is the same as a
"is there a time limit on how long it takes to settle a dwi
cass. When is it not a speedy trial.Can it be throne out or dissmissed?"
There is no specific time limit - however, the court will weigh and balance
these factors in assessing a speedy trial argument: (1) the length of the
delay, (2) prejudice to a defendant, (3) the reasons for the delay, and (4)
whether the defendant asserted the delay. The defense must of course,
push and advocate the issue.
"Can you please explain to me more on "speedy trial rights." What are the
exact time restrictions and what are the guidelines before a case is dismissed? Does it matter what the charges are and if there is a 2nd
A Defendant has a constitutional right to have a "speedy trial." There is not
an exact time period (e.g., 60 days, 90 days, 180 days, etc.) in New Jersey
when a delay will trigger a violation of that right. Rather, Courts must
weigh and balance four factors in assessing whether a speedy trial violation has
occurred: (1) Prejudice to the defendant, (2) the reasons for the
delay(s), (3) the length of the delay, and (4) whether the defendant asserted the
right to a speedy trial. The issue is interesting and profound to argue.
"I actually have two questions. Could you still get a DWI if you decided to sleep in your car (e.g., in a parking lot) because you had too much to drink
and your keys were "outside the car?"
I also heard about this but I am not sure if it is true: If someone with a
previous DWI record was pulled over and given a breath test and the
reading came up .05, they could be charged with a DWI because they
already had one DWI on their record? "
If the Defendant is in the car and had no intent to drive and there
is no proof that the car was operated, the State would be unable to prove the
element of the DWI offense. However, many Courts will (I believe incorrectly)
view the mere presence behind the wheel of the car as sufficient proof of
operation. The safest course is not to drive or even get in the car while
intoxicated. The .05% BAC is not sufficient to prove a per se offense of DWI (i.e..10%
BAC or more). However, the State can still charge a DWI on the theory that
the Defendant was nonetheless "under the influence."
"Regarding the refusal of the Breathalyzer test. I did refuse it. Because of
this, am I subject to an automatic suspension of license, or do I have to wait
until my court date to find out. Another question, if convicted of DWI and
refusal, what are the "standard" consequences? In New Jersey. Thank You."
No - the license revocation (for a first offense = 6 months) is
imposed upon conviction or plea. The penalties for a first DWI offense are
between 6 months to 1 year license loss, approximately $700.00 to $900.00 in fines
and assessments, 12 hours of alcohol awareness classes, and up to 30 days
"Is 3rd offense of DWI considered a felony?"
No - not in New Jersey.
"I was arrested last night with a level of .09. i have a court appearance
scheduled for monday. #1 because the level is below the legal level, will the
judge be more likely to let me off? #2 because i drive a school bus, am i
subject to a lesser legal level even though i am in my car? thank you so
There are two ways the State can seek to convict for DWI; showing a blood
alcohol concentration of .10% called a "per se" offense) or alternatively,
observations showing under the influence. Obviously, the State cannot prove a per se offense. However, they can try to prosecute based on your
general appearance and how you performed on the field tests.
"Last month I received a notice that was sent on June 26, 2003 to me by a
municipal court in New Jersey to appear at the court on July 15, 2003 for
traffic violations (violation codes are: a) 39:4-98.20; b) 39:6B-2; and c)
39:3-40) that all date back to July 9, 1996. Can you tell me whether a valid
argument to make before the judge is that my right to a speedy trial has
clearly been violated? The difference between the court date and the dates
that the violations were issued is just over 7 years. How likely is it that the
judge would grant my request to have the case dismissed for this reason?
Also, what possible reason could there be for why it has taken so long for
this case to be heard? In addition, despite how strongly I believe that I have
fully paid all of the fines I was issued that relate to these traffic violations,
can you also confirm that the burden of proof is held by the prosecutor?
To assess whether a speedy trial right has been denied, the Court weighs
and balances (1) the length of the delay, (2) the reason for the delay, (3)
prejudice to the defendant, and (4) assertion of the speedy trial right by the
defendant. I do not know all of the facts - however, it would appear that a
motion to dismiss on speedy trial grounds could and should be made.
"I have been convicted of a DWI in 1995, is this conviction considered a
In NJ, a DWI is not a felony or crime - it is a motor vehicle violation.
"I was charged with a DWI, and had a bac of .117.My license was revoked for
6 months.Prior to going to court I was able to obtain a NY state dl.Needless
to say 8 days after losing my license I was pulled over.I gave the officer my
NY license with my insurance and registration(girlfriends car).He told me my
NJ license was currently revoked and asked me if I knew why.I played dumb,fearing
that I would be arrested on the spot,and said that I don't know why it would
be revoked.Instead of arresting me the "officer's", at this point allowed me to
pull of the road so I wouldn't get towed and drove me to a phone so I could
call for a ride.I was issued a ticket for driving while revoked and
obstruction. What kind of trouble am I in for driving and also for lying to
the Officer?Is there any way I can pay a bigger fine,community
service,etc. instead of jailtime or an additional lose of license?
Many clients have tried and continue to try to obtain an out of state
license to try and hide the fact that they are revoked in New Jersey. An out
of state license does not negate the fact that you are suspended in New Jersey. A
conviction for driving while revoked for a DWI carries with it a mandatory
10 to 90 day jail sentence and 1 to 2 year additional license loss. The "obstruction" charge is generally a "disorderly person's" offense carrying
with it up to $1,000.00 fine, and six months jail - although without seeing
the charging document, I cannot precisely advise you on this offense as it
could be improperly charged for example. I would suggest that hire competent counsel - but
you probably know this. There may be defenses and if not, counsel can try and
minimize the penalties with a jail alternative or other alternative disposition.
"can past convections be over turned if the breath test was done
Convictions can be attacked by going back into the convicting court and
making an application to either vacate the guilty plea or challenge the trial.
There are time limits in filing these applications (generally five years) - you
should speak with an attorney and provide all of the facts to him/her to
better assess your rights.
"I was arrested for dwi after a fight at my house with my girlfreinds
daughters boy freind and i was injured dureing this fight was rendered unconcouse at
this time i had been struct in the face with a glass candle and my nose was
broken i was bleeding severly and had made it out of the house to my truck
got in and tried to get to the hospital ihad dialed 911 befor this all started
and got out of the house due to my girlfreinds violant temper when she drank igot in the truck and blacked out made a left turn
and awoke going head on for a police car pulled over and waited for the
officer to return at wich time he struck me knocking me to the ground anfd
hand cuffing me later to find that my girlfreind had a warrant takein out on
me for domestic violance and assault later on i was taken to the hospital and
then to jail this happened in 11/2001 can i still appeal the decision of this
judge and can i have the charge dismissed."
A decision of a Municipal Court can be appealed. Appeals must be taken
within twenty days of the final judgment. There are some limited exceptions
such as where no notice was given regarding the appeal deadline.
There is also a procedure known as post conviction relief. Those applications
must be filed in the Municipal Court within five years. The Court considers
constitutional defects in your trial or plea.
"I will be going on the ARD program in PA....loosing
my license for 30 days. I know I cannot drive in NJ for the 30 days. My question is will NJ take my
license away for more than 30 days. How long does it usually take for me to
get notice for the 1000.00 per year surcharge on my insurance? Will my expungement take place as
soon as I complete the ard program and pay all fines, which I plan to do as
soon as I am put on the program. I think my probation time is going to be 3-6 months."
First, I am not a PA Attorney - I am licensed in NJ only. In any event, NJ
DMV will take action against you upon a conviction. You should check the
parameters of the ARD admittance - if there was not a conviction, NJ should
not take action. If they do try and take action, it may be contested.
"What are the penalties for a third conviction if the first conviction took place
more than 10 years ago. Did the law on this recently change. If you were
arrested in October of 2001 and the laws changed in January 2003 and you
do not go to trial until April of 2003 are you subject to new provisions and
penalties of the law. "
The law will look at the gap between the snd and third offense - the time of the first is not relevant.
If the gap between the second and third is less than a year, the law treats the offense as a third. The recent
law on the issue merely was a pronouncement of what the statutory law has been.
"Can the state of N.J. charge an out of state driver a surcharge for a D.U.I. If
that driver had in his possesion a valid driver license from another state.
And produced said license to the police at the time of their arrest. please
reply a.s.a.p. "
"Police found me sleeping in my car wit the engine on and with a half bottle
of liqour on the rear seat,that happened in a parking lot.two tickets were
given to me one 39:4-50 and 39:4-51a.
OK - I am not sure what the question is. However, you are charged with DWI
and consumption in a motor vehicle. Like all charges, the State has the burden of proof beyond a reasonable doubt. If you were sick,
you would go to a doctor - you have a legal problem - you should hire an attorney.
"I will be going on the ard program for dui in PA and loosing my drivers
license for 30 days I am a NJ licensed driver can I still drive in NJ?
No - if you are suspended out of state, NJ law regards you and being
"In New Jersey will they allow a 1st time offender to have driving privliges
during working hours?"
Common Question - the answer is, unfortunately, No.
"I was in a pretty serious accident 2 weeks ago. My passenger and I are ok,
we were taken to the hospital, she was x rayed, I refused treatment. A
trooper came into the hospital and said he found opened bottles in the vehicle and
said I could either have blood taken there, or go with him to have a breathalizer test. I was not arrested, they took blood, but I don't
remember signing any forms for the bloodwork. I had a DWI in NY state in
1994, would this be considered my 1st offence because it's in another state?
I recieved 5 tickets for this, I was just hoping to get your input, thank you."
The prior New York DWI in 1994 (as opposed to a DWAI) is generally
considered a prior for sentencing purposes. I am always reluctant to advise
people on this board to seek out counsel for fear that it will be viewed as
my trying to generate a new client. However, my best advice for you is to
retain counsel. You have a serious charge and exposure (given the accident
and your NY prior). Further, blood draw DWI cases require a very detailed and
thorough analysis by an experienced and competent DWI Defense Lawyer.
"If only one of my breathalyzer tests registered because of a preexisting
asthmatic condition, am I still entitled to another test? What will the
court do with one registered reading?"
The one reading, standing alone, is not evidential. The law requires
two readings taken within 15 minutes of one another, with the lower of the
two being used for proof purposes.
"If I refused breath test do I automatically lose my right to drive, or I do I lose
it at court. This is in New Jersey thanks. "
In New Jersey, until and unless you are convicted of refusing to submit to
breath testing, the State cannot suspend your NJ license or NJ driving privileges.
"can i get a work license. I am about to lose my job"
No, there are no work or conditional licenses allowed in New Jersey.
Upon a DWI conviction or plea, the Judge must take your license
unconditionally for the prescribed period.
"Is the nystagmus gaze test
admissible in court?"
The horizontal gaze nystagmus (HGN)
test is not admissible to prove intoxication. Some Courts take the view
(I believe incorrectly) that it can be used in conjunction with other
field tests. Others take the view (which is questionable) that the HGN
test can be used as a tool to asses probable cause to arrest.
"The owner of a restaurant called
the police and reported I was leaving his establishment intoxicated. I
only had 2 1/2 margaritas and I blew .14. Isn't the owner wrong for
doing this and do I have any defense at all?"
I would not say that the owner was
"wrong" for calling - it was his right and perhaps even his
legal duty to call the police. As far as your case, you must remember,
the State has the burden to prove your guilt beyond a reasonable doubt.
It is not up to you to prove a "defense" - rather, the State
is obliged to prove the "offense". Whether the State can do so
would require a detailed analysis of the written reports and records on
file, along with any other relevant materials in the State's possession
(called generally "discovery").
"I was arrested for dui in
november and my lawyer has pushed for a trial. I have never been in
trouble in mylife and do not understand what is going on. Is it good to
go to trial with a case like this? I had 5 beers in a 3 hr period and
weigh 250pds. The officer arrested me because he was not convinced I
wasn't intoxicated even after I overheard him tell another officer at
the scene that I seemed to be fine during the sobriety tests. The kicker
was my bac results were a .14 and .15. My lawyer seems to be pushing the
issue because of some medical problems I have such as gerd nd
asthma. how much time am i facing for loss of license some of my friends
who are cops are telling me they will cut a deal and i am probably
looking at 30-90 days ???"
First and foremost, you are the client
and as such, are entitled to be informed fully regarding the risks as
well as the obvious rewards of a trial. You are also entitled to be made
fully aware of the procedures involved in your case. If, as you put it,
you do not "know what is going on", I suggest that you open up
communications with your lawyer. As far as the deal of 30-90 days, the
State cannot plea-bargain a DWI charge - only dismiss or amend to a
charge fitting with proofs where they are unable to prove their case. If
you are underage, the underage alcohol consumption while driving law
(which prohibits driving with BAC of.01% or more) provides for 30-90 day
license loss. A standard DWI charge however, carries with it mandatory
minimum loss of privileges starting with six months. Again, I would
suggest that you reach out to your attorney and tell him your concerns
for an appropriate response.
"After ten years is a dwi
expunged, or can it be use against you as a second offense?"
There is no procedure whereby a DWI
conviction can be "expunged" (i.e. eliminated) from a NJ DMV
record. For sentencing purposes however (which I think is the thrust of
your question), a 2nd offense occurring more than ten years after a 1st
offense would be treated as a 1st offense for sentencing purposes.
"I have an outstanding speeding
ticket in New Jersey from about 2 years ago? I lost it and
expected to receive a court date like in Maryland yet I never received
one? What do I do about it and can they raise my insurance in Maryland
for a ticket in New Jersey??"
If you did not respond to the ticket
by entering a not guilty plea
(as directed on the ticket), the Court typically issues a failure to
notice and arrest warrant. A Defendant can be expected to receive notice
the failure to appear which should have been mailed to the address on
ticket. If you know the Town where the ticket was issued, you should
that Towns' Municipal Court Administrator. If not, you can contact NJ
Maryland DMV. As far as the insurance question, this is a Maryland
which I am unable to answer.
"If I didn't get charged the
night I was pulled over could they later charge me."
Yes, the Police have 90 days to charge
"I was convicted of DUI 6 years
ago, since that time I paid all of my fines and surcharges, and did
everything that I was required to do. I moved out of state since that
time, I wonder if that old DUI is following me from state to state,
although as I stated it has been satisfied. I live in CO and have had a
squeaky clean record since that DUI, will that DUI follow me and dog my
every step for the rest of my life? "
A DWI conviction in NJ is permanently
recorded with NJ DMV.
"What can be done if the officer
does not offer you a breathalyzer test? I was read my rights but was
never asked to submit a test, therefore, I was given a ticket for
refusal to submit. Is there anything I can do regarding that. "
The Police are required, among other
things, to advise you of your obligations to provide breath samples and
the consequences of your failing to do so. If they did not, the charge
of refusing to submit to breath samples is not provable by the State.
Defense Counsel can explore the issue more fully - you and your counsel
need to enter not guilty pleas and explore the State's case further.
"I plead guilty to a DWI in 1999.
Is it considered a misdemeanor? "
DWI in New Jersey is a motor vehicle
offense in New Jersey, not a felony or disorderly persons
"If convicted of a dwi or dui
will i be able to drive while i am working. I am a sales rep and if I
can not drive to my appointments I can't do my job."
No - there are no work or conditional
licenses in New Jersey. The license revocation resulting from a DWI
conviction is absolute.
"I had my license suspended for
six months, does that mean 180 days or six months. does the mvd send my
license back to me, or do i go to get them."
180 days - you have to go to a
Regional NJ DMV to get the license reissued and pay DMV their
"If i admitted to an officer that
I consumed a couple beers, am I automatically guilty or is it possible
to fight the conviction and plea not guilty. Can you please
answer--thank you. "
No, you are not "automatically
guilty" - I am assuming your post meant to say fight the charge as
opposed to the conviction. The State must prove (assuming this is a DWI
charge as opposed to underage consumption while driving) either a blood
alcohol concentration of .10% or more, or that you were "under the
influence" - defined generally as your mental and physical
facilities being adversely affected. It is not illegal to consume
alcohol and drive (again, assuming you are of legal age) - only to drive
either under the influence or with a blood alcohol concentration of .10%
"is it considered a felony
- DWI is not a felony in New Jersey - it is a motor vehicle offense
"I am a first time offender. I
was stopped returning from a party. Although I didn't feel at the time
that 4 glasses of wine would have that much of an effect on me, I was
wrong. I had visited a Docto that day who prescribed a medication for
back pain. I underestimated the effect of mixing the 2 would have. I
also did not understand at that time that I should have accepted the
breathalyzer test. I did not take the test. I received a summons for DUI
and refusal to take the test. Is there any hope for me? I really need
my license to work, without it I don't know what I will do.
First, if you are convicted of either
of the charges (DWI or Refusal to Submit), the license revocation (180
days minimum) must be imposed by the Court. Further, the revocation is
absolute - there are no work or conditional licenses. The DWI charge
coupled with the Refusal charge is always an extreme challenge, although
not hopeless - I have won combined DWI and Refusal to Submit cases. One
would have to examine all of the facts of your particular case before
properly assessing whether the State can meet their constitutional
burden of proof on the charges.
"If I am convicted of a second
offence, will the courts call my job and tell them?"
No, there is no reason, or legal
reason for the Court to.
"If my husband comes home
intoxicated and I witness him exiting the drivers side of the vehicle
with his keys in is hand, can he be formally charged with dwi if the
authorities are called? "
Yes - the State can charge DWI; they
ultimately have the burden of proving each element of their case beyond
a reasonable doubt.
"I got a Dui in Md. which has a
60 day suspension for first offence. What will Nj do? Will I get 60 days
or 6 mos? (Bac was 1.8) How long does it take before NJ contacts me? Is
there a hearing? Offense was Nov. 10th. Thank you. "
NJ DMV will send you a notice of
proposed suspension advising you that unless you contest the action,
they will suspend your NJ privileges for 180 days (assuming this is your
1st offense). If the DMV action goes into effect, you will also be
subject to the NJ yearly surcharge, the conviction will go on your
driving abstract, and your insurance rates will increase.
Most times, a hearing is useless and in fact, DMV will simply deny many
hearing requests based on the fact that there are no issues warranting a
hearing. There may be issues here, but probably not - only with a
thorough review of all of the facts, the court transcripts, and a review
of MD law, can a definite assessment be made.
"In the case of a fatal accident
of a pedestrian in NJ. Driver did not exhibit any signs of drinking, was
not tested. Is it mandatory to test drivers in a fatal accident? The
victim was tested in the hospital. Is that normal procedure? "
The Police have to have cause to
subject a driver to chemical breath testing or blood testing. As to the
victim, I am not sure what type of tests you are referring to - blood
tests, or an autopsy. The autopsy would entail an analysis of what was
in the blood.
"I was recently convicted of a
second DWI offense. The first offense was in 1995. I have not yet sought
legal counsel, but plan to do so tomorrow. I am curious about a number
of things: What questions should I ask? Is jail time mandatory? I read
that you may be able to serve the sentence through the Intoxication
Resource Detention Center. Can I lobby for this? Also, a police officer
told me that I may want to use an out-of-state address for insurance
purposes. Is that legal? Finally, the officer told me that a lawyer may
be able to reduce the license suspension to 6-months or is 2 years
likely regardless of the circumstance? Thank you."
I assume you meant that you were
"charged" with DWI, not "convicted." There is a
mandatory 48 hour jail sentence for a 2nd offense, up to 90 days. The
Court can, in their discretion, allow you to spend 48 hours in the
Intoxicated Driver's Resource Center (IDRC) in lieu of jail. Using an
out of state address for insurance is illegal. You cannot plea bargain a
DWI charge or sentence. There may be issues whereby your sentence can be
molded, but thinking that the sentence can be reduced routinely is
foolhardy. Some cops, while well-intentioned, misstate the law -
further, even though the process may have seemed quite cozy, once the
cops charged you, they were and are basically, your accusers, not your
protectors. Defense counsel is there to protect your interests in the
system which is adversarial. You should seek DWI Defense Counsel to
guide you and protect your interests.
"Why is a DWI not considered a
crime? Are the laws more strict on someone convicted of a DWI that has
injured someone as opposed to someone with a DWI that has not?"
I do not know why New Jersey has not
made DWI a criminal offense. If DWI was criminalized, a Defendant would
have a right to a Jury Trial, something which I personally, would like -
a jury of ones peers is the best based system in the world. Yes, there
can be other criminal charges filed against a Defendant when there
are injuries and death.
"What is the time frame for a
speedy trial the arrest took place in march of 2001. "
There is not a specific time frame in
New Jersey which embodies the constitutional right to a speedy trial.
Rather, the Court must weigh and balance four factors (to assess whether
a Defendant's speedy trial rights have been violated): (1) the length of
the delay, (2) the reasons for the delay, (3) whether the defendant
asserted his right to speedy trial, and (4) any prejudice to the
defendant (which does not have to be real prejudice such as the
inability to properly defend the charge - it can be the psychological
strain of having the prosecution hanging overhead) occasioned by the
delay. With a March 2001 Arrest, the first factor (length of delay)
seems to be excessive - note that this is just one factor which the
Court has to weigh. If you have counsel, he/she should, if warranted, be
making the appropriate record before the Court on the issue.
"If under 21 when got DUI, is
expungment possible after turning 21?"
"If your second offense occurs
more than 10 years after your first it is my understanding that the
offense then is viewed as a first offense, does this also apply to the
IDRC and your time spent at the IDRC facility, or can they impose
tougher sanctions on you as if it were your second offense?"
The Court cannot, but the IDRC can.
The Court cannot deviate from statutory sentencing parameters. However,
the Intoxicated Driver Resource Center (IDRC) may require that you
attend additional counseling beyond the two day class you are required
"How can I get my DUi expunged?
You cannot - a DWI Conviction in New
Jersey (as well as all motor vehicle violations) cannot be
"expunged." A DWI Conviction will become and remain, part of
your permanent NJ driving record.
"My father was charged with
several DWI offenses in NJ 10 years ago. To my knowledge, he has never
appeared in court for at least 1 of those.
He is trying to get a driver's license
reinstated in Maryland and they are telling him he needs to resolve the
DWI charges from NJ before they will reinstate is MD driver's license.
Does that statute of limitations apply? It appears it only applys to the
charge but if there was a warrant issued for his arrest, it would not
He is willing to 'turn himself in' and go to jail to resolve these
issues if necessary. What can he do to clear his driving record in NJ
and get this resolved so that he may get his driver's license
reinstated? He needs a driver's license to make a living. Any
information you can provide to point him in the right direction is
The first order of business is to find
out precisely what courts have outstanding matters against your father
(this is properly done with a review of his NJ DMV driving history).
Next, each court will most likely want bail to be posted to rescind the
bench warrants. Once that is done, each case must be reviewed to see
whether the State can prove the charges against your father beyond
a reasonable doubt. Be careful, Maryland may refuse to issue your father
a license if he is suspended in New Jersey - they may want him to wait
out the New Jersey suspension period. It would be foolhardy to simply
enter guilty pleas in these cases before reviewing the State's proofs.
There may be jail exposure here as well - however, more facts are
needed. Lastly, note that the statute of limitations (probably 30
days for your father's cases - 90 days now) applies to when charges must
be filed, not fully resolved. I would strongly suggest that your family
retain New Jersey DWI Defense Counsel.
"Is there a time limit for the
court to try a case?"
There is no definite time period
within which the State must conclude a DWI Prosecution. However, the
United States and New Jersey Constitutions provide that a Defendant is
entitled to a "speedy trial." Each case is fact sensitive -
you should consult with Counsel who, when given the pertinent facts, can
give you a more tailored response.
"I heard a rumor saying that, for
DWI, first offense 6 months in jail, second offense a year in jail. Is
thistrue??If not, it should be. "
Just a "rumor."
"What are the laws of DWI in New
That is a very very broad question -
you need to be more specific please.
"What constitutes a Felony in NJ
DUI Law? I read at the MADD website that NJ+48 other states have the DUI
Currently, a DWI charge under N.J.S.A.
39:4-50 is a motor vehicle violation, not a felony. In certain cases
involving death or injuries, felony charges can be filed where the DWI
is an element of the offense.
"Sorry, but I couldn't find help
for my question in regards to suspended license but has nothing to do
with DWI. I hope you could help me.
1995 - I was working as a door-to-door salesman, basically 7-7 hours on
the road and hardly making any money. Due to that, I failed to do some
repairs on my car and in the process received several tickets for it
which resulted to my 1st suspension (got pulled over - driving w/ a
suspended license). Took care of this problem in Trenton. Meanwhile,
because of the suspension I quit my salesman job(can't drive) and in
1996-7 moved to Florida because of financial hardship in NJ.
I found out later in Florida that I have a 2nd suspension, driving with
suspended license and no insurance. Problem here is that, I was never at
or near at that time of said issuance of ticket. In short, I was not
driving a car at that time. Further personal investigation showed that
this ticket was issued at the time I was suspended with my 1st
suspension. It turns out that unbeknown to me, my girlfriend
have taken the car to visit her mom and on the way home have a flat
tire. She called up the tow-truck and was in the process of being towed,
that's when a patrol-car gets behind(possibly for traffic safety reason)
and obviously check the plate(no moving violation).
My girlfriend have a valid NJ drivers license but she didn't get the
ticket, I did and I was not even there(the officer would have me
arrested if I was there). The violation is 'Driving with a suspended
license and no insurance'. My 1st suspension was taken cared of, paid
the fines and penalties and reinstated(I believed) only to be suspended
for the 2nd time.
This would have been a little bit easier to care of if I was still in
NJ. It's 2002 now and going 2003. I really want to care of this problem
but I don't have the money to go back to NJ and take care of this
problem. Any advise or course of action would be greatly
appreciated and sorry for the long post. Thank you much."
You must first determine how much bail
you need to post to vacate the bench warrant (which was presumably
issued). Many courts will allow you to post bail by mail. Once that is
done, the case will be listed for trial.
If you are unable to make it back to
New Jersey because of financial hardship, New Jersey Court Rule 7:12-3
gives the Court permission to allow your "Statement in Mitigation
or Defense by Affidavit." This is a sworn statement of your
position. Be careful - you are much better off appearing in Court in
person and preferably, with counsel. The statement may very well be used
as evidence of your guilt.
"What is the longest time the
state can hold your license after you are convicted of your first
offense with out satisfactory completing their courses? "
Indefinitely - for others, you are
referring to the required Intoxicated Drivers Resource Center (IDRC)
course. The IDRC can also require that additional counseling be
undertaken - if you fail to comply with their dictates, likewise, your
license will be suspended until you comply.
"I have checked myself as an out
patient in an Alcohol abuse program where I get tested daily.
Could this get me out of going to IDRC program?"
No, you must attend the IDRC and
comply with whatever treatment regimen, if any, they mandate. The
outpatient treatment may satisfy a possible IDRC recomended treatment
plan; however, you must attend the IDRC for screening.
a person was convicted of DWI, a first offense, 8 years ago, and
recently got a second offense, is the first offense considered, or
is there a statute of limitations making his new offense the first
Yes, the first offense, being less
than 10 years from the 2nd offense, would be considered for purposes of
sentencing on the 2nd offense.
"what are the judges allowed to
do with a 3rd conviction of dwi for sentencing purposes. are they
allowed to suspend the jail and/or inpatient rehab ??? Is it up to their
discretion??? Are there any other programs that can be implemented.
thank you. "
There is a mandatory 180 day jail
sentence. However, 90 days of it can, in the Court's discretion, be
served with community service, leaving a 90 day balance. That 90 day
balance can, in the Court's discretion, be served by admittance into an
in-patient rehabilitation program. If the facility releases you before
the end of the 90 days is finished (which most will do), the Court can
allow you to serve the balance by attending the requisite outpatient
care as mandated by the facility.
"Will I go to jail on a .20
reading on a second offense my first offense was in 1995, I have already
checked myself in to an outpatient program to get help with alcohol? I'm
just scared of going to jail. "
There is a mandatory 48 hour jail
sentence for a second offense and up to 90 days. There are jail
alternatives - for example, attending an overnight two day IDRC program.
Your treatment efforts certainly will help to try and argue against jail
time although there may be other factors present here which
experienced counsel can advocate on your behalf. You should consider
hiring an attorney to guide you and protect your interests - if you
cannot afford counsel, you should apply for the public defender.
"I got a reading of 2.0 my 2nd
offense, what kind of fines am I looking at?"
If you are convicted or plead guilty,
$500.00 to $1,000.00 fine - you will also have a surcharge of $1,000.00
per year through NJ DMV. You asked about "fine[s]" only - note
that there are other penalties which must be imposed on a 2nd offense.
"I received a DWI over three
years ago. Will the charge appear on a criminal background check done by
a prospective employer. Thanks.
A DWI is not a crime in New Jersey. A
record of the conviction does however, appear on your permanent NJ DMV
"several years ago, i was
arrested for first time dwi. the arrest occurred because of an anonymous
tip made via cell phone. the caller dialed 911 and reported a car
driving all over the road. the caller then gave the 911 dispatcher my
license plate. the dispatcher ran the plate number for identification
and then notified the town police where i reside. the police then sent a
patrol car to check my house. as i was not yet home, the police then
placed a patrol car down the block from my home and waited for me to
drive past. when i did, they immediately turned on their lights and had
me pull over, this despite the fact that they witnessed nothing
improper. after the stop was made, they advised me that i was pulled
over because of a complaint, they asked me if i was drinking, I said
that I had had a few, and they then appeared to follow the usual
procedures. Ultimately I failed the fst, was taken to the station house,
and given three breath tests. The readings came in at .20, .23, and
finally .21 in that order. at that point I was formally charged with dwi
my trial attorney at the time advised me that i would probably lose the
case on the basis of the fst,this despite the fact that the breath tests
were legally invalid since they were too far apart numerically. of more
important note, though, was his position that the police, in his
opinion, made an illegal stop, one which was instigated strictly on the
basis of an anonymous tip with absolutely no corroborating evidence
witnessed by the police. on that basis, my attorney made a motion to
suppress. it took the municipal judge four months to issue his ruling on
the motion which was one of denial, citing the community caretaker
provision in his decision. after that, my attorney advised me that the
best course of action was to enter a conditional plea of guilty
contingent on my right to appeal the motion and hold onto my license in
the interim. the municipal judge agreed. at the de novo review in
superior court, meanwhile, the judge also denied the motion to suppress,
after which i appealed to the state appellate division for a second
review. i am currently awaiting the court's decision on this matter.
That said and done, I would be curious to know if my trial attorney's
approach was the proper one. In addition, if I lose at the
appellate level, do I still have any options open where I cold hold onto
my license during the process. Thank you in advance for your
Without knowing all of the facts, I
would be hard pressed to question your attorney's use of the
"conditional plea." Generally however, the use of the
conditional plea is a good tool where the State's observation case
against is extremely strong. In these cases, it is better not to clutter
the record with the State's strong observations - e.g. Defendant falling
over drunk, etc.
If you lose in the Appellate Division, you can seek review in the New
Jersey Supreme Court. The Appellate Division may, but is not required
to, stay the license revocation pending Supreme Court review.
"Do I have the right to a public
defender if I cant afford a lawyer?"
Yes, because the penalties for a DWI
conviction are what is known as "consequences of magnitude",
you are entitled to a public defender if you cannot afford one.
"A bench warrant was issued
against my son for "failure to appear" in court. He is now
living in VA. Is there a statute of limitations on the bench
No - provided that the summons was
issued within 30 days of the offense, there is no "statute of
limitations" on a warrant.
"can a bicyclist be charged with
DWI for operating a bicycle in the state of NJ? Is there case law
to support a conviction?"
This is an interesting question,
because there is no clear line of authority on the issue. In State
v. Machuzak, 227 N.J. Super. 279 (Law Div. 1988), the Court
(Somerset County) held that the DWI Statute (NJSA 39:4-50) clearly
did not apply to non-motorized bicycles. A Cumberland Superior
Court also held that the Statute was not applicable - see State v.
Johnson, 203 N.J. Super. 436 (Law Div. 1985). However, in State v.
Tehan, 190 N.J. Super. 348 (Law Div. 1982), a Court (in Somerset
County) found that a bicyclist could be found guilty of DWI,
although the license revocation could not be imposed.
Until a higher Court in New Jersey rules on the issue, technically, the
issue is unfortunately, not clearly answered. Where as here, there are
conflicting Law Division Decisions (the Courts above the lower Municipal
Courts), the issue is technically regarded as unresolved, although the
Machuzak and Johnson decisions appear better-reasoned that the Tehan
"A friend with 2 prior
convictions has been through the IDRC system, counseling, etc. and was
told by another person that you can get a DUI as a PASSENGER in someone
else's car if tha driver is given a DUI. The reason he was told
was because as a passenger, you are contributing to that driver's
offense. He asked his IDRC counselor if this was true and the counselor
told him that "it was possible". This is outrageous if
true. I have heard that you can get a DUI if someon drunk is
driving YOUR car, for obvious bad judgment and consent reasons, but if
they are driving their own car, how can this be chargeable to a
passenger? I have asked a police officer and he said he never heard
this, but I don't want to rely on him alone. My friend is worried sick
that he could be in a car as a passenger and not know how much that
driver has had to drink and then him getting a 3rd DUI - that would be
devastating. 10 years without a license would ruin anyone's life. He can
control himself never getting another DUI, but as a passenger, that's
another story. Can you give us some legal advice on this
outrageous-if-true law? Thank you!"
The Statute, N.J.S.A. 39:4-50 (i.e. NJ
DWI Law) provides generally that a person may be charged with DWI
if he "permits another person who is under the influence ...
to operate a motor vehicle owned by him or in his custody or control or
permits another to operate ..." So yes, it is possible for a
passenger to be charged with DWI for what sometimes is referred to as an
"allowing" charge. It is usually a rare charge because the
State has to prove that the allowing was a "knowing" type of
allowing - but why take the chance.
"I received a DWI conviction in
February, 2000. I had a clean driving record prior to and following this
conviction. I was just in a fender-bender in which I was issued a
careless driving summons because I rear-ended the other vehicle. This is
potentially a 2-point offense. Two questions 1) How many points did I
receive on my license for the original DWI and have any of those points
been removed in the two years that I've had no traffic violations? and
2) Is it true that insurance points for DWIs are NEVER removed from your
insurance record? Please respond. I'd like to know if I need to bring a
lawyer to court to try to get the careless driving reduced or if I can
go on my own. Thanks. "
A DWI conviction does not carry with
it DMV points. However, a DWI conviction does result in insurance
eligibility points which translate into insurance rate increases. Most
carriers look back three years. The careless driving summons, as you
note, is a two point ticket. However, note that an at fault accident
resulting in a payment of $500.00 or more may also result in insurance
eligibility points. This might be so even though the careless driving
summons was reduced to a no point violation.
"hello, i am currently in my 6th
year out of 10 year suspension recently became disable and file'd for
social security benefits i don't really wan't to live on this. i live in
the northwest corner of NJ where transit is limited and i am not able to
perform certain kin'd of work but there is work if i could just get to
these places rather than be on SSI is there a possible way my case can
be brought u in court again for a redetermination or some kind of
thing that would allow me to work again. "
This is a common question. Currently,
there is not a procedure in New Jersey whereby a properly imposed
license revocation for a DWI conviction can be lessened. There may be
other avenues of possible attack - for example, the revocation period
may have been unlawful (highly rare), the guilty plea may have been
taken improperly and therefore subject to being vacated or there might
be a constitutional defect with regard to the trial procedure which
would allow for the judgment being vacated and new trial to be granted.
These avenues are usually long shots, but nonetheless, available as
possibilities. Further, there is generally a five year time constraint
(extended upon good cause) within which to bring certain of the
applications to open up the case(s).
"WHAT HAPPENS IF AFTER 10 YEARS
YOU GET A BILL FOR A SURCHARGE YOU KNEW NOTHING ABOUT OR EVER RECVD
This does not obviate the
responsibility to pay the surcharge.
"My husband just got his 3rd DWI.
The first was over 10 years ago. Does this one count as his 3rd or 2nd?
There is a lot of confusion over this point among the police. "
If the gap between the 2nd and 3rd is
less than ten years, the 3rd is regarded as a 3rd offense for sentencing
purposes (even though the 1st is over ten years ago).
"I received a DUI over 15 years
ago in NJ. I left the state before needing to get a new license. Just
recently I received a letter stating I needed to pay $3000 in surcharges
plus interest. What are the repercussions of not paying this penalty?
New Jersey can enter a money judgment
against you for the amount due. The judgment can result in enforcement
measures in New Jersey or in your home State to collect that judgment,
can effect your credit, and could prevent you from obtaining a license
in another State. The judgment also means that your driving privileges
are revoked in New Jersey - if you are caught driving in NJ, you will be
subject to penalties for driving with a revoked/suspended driver's
license (N.J.S. 39:3-40).
"Is it considered a DWI while
drunk (passed out) in a parked car without the keys and but you do have
1/2 a bottle of alcohol? Can you get a seatbelt ticket too? "
The State has to prove
"operation" -- this can be done with direct proof of operation
(i.e., witness), proof of an intent to drive, or proof that the car was
driven (i.e., there is an inference that the car was operated). Whether
the State can prove their case is dependent on the specific facts in
recently was pulled over and charged with DWI and reckless driving. I
was given the field tests and failed. I was given the breathalyzer and
received a .06 reading on both tries. What are my chances of winning? I
was pulled over because I was pulling out of the lot of a closed down
dinner. I was tired and pulled over and thought I would nap, then
realized that was not a good idea. The cop pulled me over because I was
pulling out of the lot; not because I was weaving. Is this a good enough
reason to pull me over? Thanks in advance for your help. "
The State does not necessarily need a
.10 blood alcohol concentration reading to charge and convict for DWI.
However, given the low reading, generally, a DWI prosecution would be
difficult unless the observation evidence (how you performed on the
balance tests and how you appeared generally) is otherwise very strong.
Experienced counsel with the assistance of an outside field sobriety
testing expert should be able to expose the weaknesses in the State's
Pulling out of a closed diner raises an issue as to the State's probable
cause to have stopped you - I would certainly raise and argue the issue.
However, the State may very argue (and prevail) that they were within
their rights under what is called the "community caretaking"
"Hi, I recently received a second
dui charge. It just so happened that I had to move to Florida from New
Jersey (for work) weeks after getting the ticket. I didn't go to court
yet but since I moved, I already changed my license to Florida. Can NJ
suspend my FL DL? Will FL suspend it after finding out that was
convicted (if in fact I am)?"
NJ only has the jurisdiction (i.e.,
authority) to suspend your NJ license. As to the effect on your FL
license, you are guided to speak with a FL DWI attorney since I am not
licensed to practice law there.
"After 10 years if you get
another dwi is that considered first or second offense. "
If your second DWI occurs more that 10
years after your first offense, the court must treat the defendant as a
first offender for sentencing purposes. However, if a subsequent 3rd
offense occurs and that offense is within ten years of the 2nd, the
defendant is treated as a 3rd offender.
"Do I need to get a Lawyer?
There is no legal requirement that you
have a lawyer for a DWI charge. A lawyer is however, most often a wise
choice. An experienced DWI Lawyer can, among other things, look for
defects in the State's case which may translate into a finding of not
guilty on the charge.
"In April 1983 I plead guilty to
dwi, surrendered my license and paid the fines. I moved out of state and
never received any further notifications. now 19 yrs. Later I received a
bill for 3yrs. surcharge($1000) per yr., 350 reinstatement fees and
interest.My attorney never mentioned the surcharge fees at that time and
having recently moved I just threw the records out. Am I responsible for
these charges? I don't think its worth $4500 to drive the NJ
Yes, you are obligated to pay the
"Is a DWI a criminal or municipal
offense? Will a dwi show up on a criminal background check for
employment? If it does this supports my theory of the laws being to
strict. Are you ever allowed to get your life back? Please answer my
In NJ, DWI is regarded as a motor
vehicle offense. A record of the conviction becomes part of your
permanent motor vehicle (DMV) record.
"If I got caught With a DWI in
another persons car. Will the other person get the DWI also? "
The State would have to prove that the
other person knowingly allowed you to drive while intoxicated to charge
"Is there a way to prevent DWIs
from appearing in the local papers?"
No, this is public information open to
"I live in NJ and recently
received a DWI. When I was handcuffed and placed in the police
car, I thought I would be read my rights. I never was. Later, I was read
a form and had to sign it before I took the breath test. Are the police
required to read your rights when you are arrested for a DWI? I was also
never finger printed."
The Police are required to advise you
of your "Miranda Rights" once you are in their custody. The
Police do not have to take your finger prints.
"Can you be charged with DWI if
you car is turned off and the keys are not in the ignition?"
Yes, "you can be charged with DWI."
The State will, however, have the burden of proving operation either by
an intent to operate, witness of operation, an inference that you did
drive, or by admission of driving. The State will also have to show that
the breath tests were conducted within a reasonable period of time from
"Can you be charged with both
underage DWI and DWI? "
"NEW JERSEY DRIVERS CONVICTED ON
A DWICHARGE ARE ASSESSED 'ELIGIBILITY POINTS'BY THEIR INSURANCE
COMPANIES. THIS MAY RESULT IN A CANCELLATION OF THEIR POLICY. IF THE DMV
REQUIRES AUTOS TO BE INSURED, WHAT IS THE DRIVER TO DO IN THIS
Insurance is available through the
Assigned Risk Plan in New Jersey. This is insurance for so called
"high risk" drivers. I have heard of rates going up three
times following a DWI Conviction.
"I was wondering what offense
would I be charged with today if i got another DWI. I have had 2 DWI's,
one in1986 and a second in 1988. I could have gotten my license back
after 2 yrs. but chose not too. Now 14 years later and a responsible
man, not a dumb kid, would I have the penalties stepped down to a 2nd
offense? I am currently sober and doing well. "
Yes, you would be sentenced as a 2nd
offender upon a guilty plea or guilty finding.
"This is third offense for my
son. I am worried about the jail time as I am sure it will not make him
a better person and fear violence to him and him being raped. Do all 3rd
time offenses go to jail? Is it cut and dry on this. Can't they send him
to a rehab instead that would help more and do not think would be
attacked and raped. Please write me on your experience on this matter.
Thank you. "
Upon a conviction for a 3rd offense,
the Court must impose a 180 day jail sentence. However, the law further
allows the jail to be split as follows: 90 days community service, and
90 days of inpatient substance abuse rehabilitation. The 90 day
inpatient stay can be further reduced provided that the facility
director petitions the Court and advises that it is medically
appropriate for the patient to be released to outpatient care for the
balance of the 90 days. There are sometimes sentencing
issues whereby the 3rd offender status can be compromised (i.e., the
jail can be eliminated). One would have to carefully review the
important facts of your son's case. Your son most definitely needs an
I am a college student going to
Monmouth University. I have to write a paper about drunk driving in New
Jersey and there are a few questions I am having trouble finding the
answers to. 1. What is the difference between a DWI and DUI? 2. What is
the history/background of drunk driving? 3. What is the significance of
this problem? 4. What are the effects and causes of drunk driving? 5.
What has been done to solve this problem in the past? What are possible
These are the questions I am trying to find answers to. Can you please
get back to me as soon as possible with any answers you may have? Thank
you very much!
1. DWI is an acronym for Driving While Intoxicated -- DUI is an acronym
for Driving Under the Influence. In New Jersey and in most States, there
is no distinction between the two.
2. The "history and backround"
of Drunk Driving -- wow, that is a broad question and one which I cannot
properly answer here. I would suggest that you begin your analysis with
New Jersey's DWI Statute (N.J.S.A. 39:4-50), our lawmakers pronouncement
of what is prohibited and the penalties. You can find the Statute in the
a Law Library at your County Court House. Go to the
"Annotations" which contain precedent known as "case
law" which interprets the Statute. You can also access the
"Legislative History" of the Statute at your Law Library -
this will show you what was on our lawmakers minds when they enacted the
laws and the changes to it over the years.
3. The "significance of the problem" depends on what
"problem" you are referring to. Presumably, you are referring
to the injuries and death caused by people who drive intoxicated. If you
are looking for statistics and the like, you might want to go to the
National Highway Traffic Safety Administration website as a start.
4. The "effects and causes" of Drunk Driving are as varied as
human nature. Some people suffer from the disease of alcoholism, some
people are drinking because of some other personal problem such as
depression, anxiety, or stressful life event such as a divorce or death
of a loved one and some people just make stupid and irresponsible
mistake of driving after having too much to drink. The
"effects" are on those Defendants who are charged and
convicted of DWI (the penalties in NJ are among the strictest in the
Nation -- the fines, surcharges and increased insurance rates
approximate about $10,000.00 over three years). Of course, there may be
"effects" on innocent others if there is an injury or
5. What has been done and the solutions is again, a broad question. I
would suggest that you look at the Law in New Jersey, look at the
causes, and ask whether increased punishment is an appropriate solution.
You should also specifically look at the requirement in New Jersey that
Defendants convicted attend the New Jersey Intoxicated Driver's Resource
Center, a screening and education program which is run be devoted people
and whose training, education and screening has proven to be very
valuable in reducing recidivism. You may also want to look into what
programs are available to those people who are suffering from the
disease of alcoholism, and whether New Jersey should focus more on
affordable treatment of sick people rather than the punitive aspects.
One final word of advice -- research the issue and gather as much
information you can. I would suggest that you spend some time in a New
Jersey law library. When you do your paper, aside from regurgitating
facts and other statistics, you should focus on coming up with your own
creative ideas. Good Luck with your paper and your education. I hope
"I was convicted in 1996 for
refusal to submit to a chemical test. I was just arrested for DWI. I
took the Breathalyzer test and produced a reading of .14. Will
this be considered a first of second offense for DWI?"
you are convicted or plead guilty to DWI, there is law holding that the
prior refusal conviction should not be treated as a prior violation for
purposes of enhancing your sentencing status. see State v. DiSomma, 262
N.J. Super. 375 (App. Div. 1993). Thus, the DWI should be considered a
first for sentencing purposes.
"If I have been convicted of dwi
first offense, and have decided not to drive for the 3 years, do I still
have to pay $1000.00 per year insurance surcharge. I will not be
If you do not pay the surcharge, when
the three years is up and you want to go back to driving, you will be
suspended for failing to pay the surcharges. Further, DMV will tack on
interest and costs and your failure to pay may result in a formal
judgment being entered against you. You may have your assets levied, and
the judgment will be on your credit history. The answer to your question
is yes, you can decide not to pay the surcharges, but note the
consequences of failing to do.
"Is there a so called 10 yr. law
where if you had a d.w.i. 10 or more yrs. ago, a new d.w.i. would be
treated as your 1st. is this true? "
This is sometimes called a "step
down" - if a 2nd offense occurs more than 10 years after the 1st
offense, the court must treat the 2nd as a first for sentencing
purposes. However, note that upon a 3rd conviction, if the gap between
2nd and 3rd offenses is more than 10 years, the Defendant is to be
treated as a 2nd offender, not a 3rd. Further, if a 3rd occurs within
the 10 years of the 2nd, the Defendant is treated as a 3rd offender --
that is even if the gap between the 1st and 2nd is greater than 10 years
and the Defendant was treated as a 1st offender for his 2nd offense.
Is it true that the breath analyzer
must be administered twice, and results be in a narrow margin for it to
The "Breathalyzer", used in
New Jersey, must be administered two times within fifteen minutes,
with samples within .01 of one another -- the lowest of the two reading
is used for proof purposes.
"Is drunk driving a Felony in the
state of New Jersey?"
"I got stopped for speeding and
was subject to field sobriety tests. Upon conclusion of my tests I was
taken in and took a breathalyzer test. I passed below .10 (.08) I was
given a ticket for speeding and Reckless.( no mention of DUI on the
tickets). Will this be brought up in court? Are the charges only
Reckless and speeding? I had a DWI conviction 3 years ago. Can this be
used against me? I have no DMV points on my license. Only insurance
points for DWI. Thanks for your help ."
The State has 90 days to issue another
ticket for DWI. You need to sit tight -- experienced counsel would
benefit you here. The prior DWI may very well be looked at by the
Prosecutor in assessing a recommended license revocation for the
reckless driving charge. The amount of alcohol (albeit under the per se
limit of .10%) will be an issue in Court. The consumption of alcohol is
the State's theory in writing the Reckless ticket.
"How many drinks can a 200lb man
have per hour on avg. and still drive legally?"
There are far too many variables for
me to go out on a limb to answer this question in this open forum. The
best rule of thumb is to not take the chance by trying to gauge your
"Going through a dui in pa with a
nj license---is there a work restricted license offered in nj....i
live in nj and work here also...warren co and hunterton co to and from
No - NJ does not currently allow for a
conditional license for work or otherwise.
"Is there a statute of
limitations on a dwi? How can I find out if it is an outstanding
warrant? I received one 13 years ago. I was in a drug rehab when I was
supposed to be in court."
The "statute of limitations"
applies to the issuance of the summons and complaint only. You probably
have a warrant -- to confirm the status, contact the court
administrator. Good Luck.
"What is someone is pulled over
for speeding and is drunk in a school zone but it is after school hours
are over, let's say 11 PM, does the school zone restrictions still
The "school zone"
enhancements in the New Jersey DWI Statute currently apply regardless of
time of day, and whether school is in session or whether children are
"How bad is .13?"
It depends on what you mean by
"bad." In terms of sentencing (if you
were to be found guilty or pleaded guilty), a .13% B.A.C. is not
most courts as an exasperating factor which would cause the Court to
penalties beyond the mandatory minimums. However, the B.A.C. has to be
into consideration with all the other facts (e.g., driving pattern,
record, relations with the cops to name a few). I hope this responds to
"Does our state have some
arrangement wherein a DWI offense driver can go for a DWI defensive
driving course to reduce charges?"
No, not currently.
"I am a 24 year old third year
medical student. I received a DWI three years ago. Is there any point in
time where I can try to move to have it removed from my record. Thank
you very much."
Currently, there is no procedure in
New Jersey to expunge or remove a DWI conviction from your New
Jersey DMV driving record.
"My girlfriend was caught with a
dui, and she is 19, she had a .01 BAC and they didn't give her a
breathalyzer or read her rights before they brought her to the station.
They said they pulled her over for 'hugging' the yellow line. she was
driving fine, she was the designated driver and only had a couple
drinks. We let her drive because she was sober, and everyone else was
really drunk. Any information you can give me would be a great help.
Something just does not appear
accurate. How can the State allege . 01% BAC without a breathalyzer
reading? Further, with a . 01% reading (90% under NJ per se limit of.
10%), are you sure the charge was DWI as opposed to underage DWI?
I would need more information to
better assess the case. However, remember that the State has the burden
of proof beyond a reasonable doubt as to their charge(s). Please either
email me with more detailed information, or call me or have your
girlfriend call my office.
"What happens to a defendant when
he does not show up for court?"
The Court will issue a "bench
warrant" for the defendant's arrest with a stated bail. The New
Jersey DMV will also revoke the driving privileges of the defendant
indefinitely until the defendant responds to the ticket and fully
resolves the matter.
"How do I eliminate past DWI
convictions(over 10 yrs old) from my driving record/abstract? Are there
state or federal laws governing this? Any direction to this effect will
be appreciated. "
There is no "expungement"
procedure available in New Jersey to eliminate a DWI conviction from
your NJ driving record. The only way to eliminate a prior conviction
would be to go back into the convicting courts to either vacate the
guilty pleas, or to move for other "post conviction relief."
The chances are usually slim given the age of the case(s), but, the
possibility (as opposed to the probability) is technically there.
"I'm a Pa resident. I got a DWI
in NJ. I lost my Privilege to drive in NJ Then lost my PA license for
one year. Now NJ wants me to pay their insurance surcharges. Do I have
to pay? "
Yes, currently, the law allows NJ DMV to impose the yearly DWI surcharge
even though you live outside of New Jersey.
"Will a dwi ever be off someone's
record? Example: Would a 2002 DWI charge be considered 2nd offense if
the first DWI charge was in 1986? Thank you."
The conviction will remain a part of
the driver's permanent dmv record. However, in specific answer to your
question, a second conviction for DWI would be treated as a first
offense for sentencing purposes because there is a gap of ten years
"My 21 yr. old daughter refused
the breath test because she thought I was calling our attorney. The
police would not let me speak with her to let her know I could not get
through, or else she would have taken it, she also did not know and was
not told that by not taking it you were guilty. Our lawyer says all
these does not matter, a refusal is a refusal. This is in New Jersey
At the outset, note that there is no
right to a lawyer or advice of counsel before giving breath samples. The
police are requires to read a suspect a "standard statement of
rights" before the breath testing -- the statement advises a
suspect of, among other things, the consequences of refusing to submit.
If this statement (the proper statement) was not read, this would be a
defense to the State's Refusal charge. The fact that your daughter
refused because she thought you were contacting counsel in and of itself
is not relevant. Without seeing the State's records and reports
("discovery"), I cannot, however, fully assess the matter.
There might be other defense issues, and other facts not mentioned by
you, might be relevant to.
"Hello, I received two DWI
convictions 11 yrs. ago. I subsequently moved out of state and after
2yrs reapplied and received a non-NJ drivers license. I never paid
the insurance surcharge but paid all the other fines and completed the
community service requirement. My question is am I legal to drive in NJ
with my out of state drivers license? "
No, if your privileges are suspended in NJ (and they should be for your
failure to pay the surcharges), it is illegal to operate a motor vehicle
in the state of New Jersey even though you have a valid license in
another State which may be in good standing.
"is DUI a felony in NJ?"
drivers license was suspended for l0 years, this happened after I had
claimed bankruptcy and had gone through a very difficult divorce,
previously I had attended a good treatment program and worked through
all the emotional turmoil, I was pulled over for a tag light that had
gone out on my parents car, I was driving 25 miles an hour on a very
foggy night last October, 2000. I had only just gotten my license back
and had worked very hard to do this, I was not drinking and I was the
designated driver for a neighbor, I refused the Breathalyzer as I didn't
trust it I had been in the presence of an officer who dated my ex
girlfriend and vowed to get me, anyway after all of this, I accepted the
loss and went through the idrc who wanted me to attend meetings and get
them signed, I am at the end of the line, I have given everything I
could have and now I was arrested on a non compliance charge, that was
mistakenly sent as a DWI charge, we posted 500.00 bail and was never
notified of the court date the officer in my town has called the court
clerk in the original town and told them that there was no court date
given to me, now they have issued another warrant, for 750.00 I am about
ready to just give up, because I have no where to go and don't know what
to do, can you give me some suggestions."
Attendance at the IDRC is required for
a refusal to submit conviction. For more information on the IDRC, see NJ
DMV site information at http://www.state.nj.us/mvs/idrc.htm
The warrant must be cleared -- i.e., rescinded with bail posted, or an
application to the court to rescind. It would appear however, that the
quickest way to handle the matter would be to post the bail. You would
then have to see what the alleged non compliance is -- perhaps you just
never went to the IDRC at all, as opposed to failing to adhere to the
IDRC mandate for outside counseling.
You should consider hiring counsel to sort through all of this given
your exposure to jail.
"My wife had a single car accident
on the NJ turnpike which she had to call 911 to get help. She had
suffered head and face injures. She was given a FST and then sent off to
the hospital. Three days later we received three tickets in the mail
from the helpful state police. She was cited with careless driving,
driving without a seat belt and no registration. I have two questions
First how can the police issue these tickets when the infractions where
not in there presence as stated in 39:5-25. Also could the state request
a blood sample without my wife's permission or knowledge. Thank you.
The State can issue any tickets they
wish -- however, they must prove guilt beyond a reasonable doubt. In
State v. Wenzel, 113 N.J. Super., 215, 216-18 (App. Div. 1971), the
Court held that the single fact of an "otherwise unexplained
jackknifing" where a tractor-trailer jackknifed on the wet roadway,
crossed into the opposite lane and broadsided another truck, did not
establish a violation of the careless driving statute. See Also: State
v. Lutz, 309 N.J. Super. 317 (App. Div. 1998) Found On Line @ http://lawlibrary.rutgers.edu/decisions/appellate/a5933-96.opn.html
where there was an accident and a statement of the defendant that his
vehicle began to slide on the wet highway and continued to slide as he
applied his brakes. The Court held that this statement alone (again,
there were no other witnesses), coupled with the defendant's apology
were insufficient to prove careless driving.
The above line of cases would appear to apply to this case, but without
reviewing all of the State's reports and records, I cannot advise
The Police can withdraw blood from a
defendant without consent or knowledge provided that there is probable
cause to believe that the defendant is DWI. The fact of the accident is
taken together with all of the other facts and circumstances to
determine whether there was a reasonable suspicion that the defendant
was DWI -- e.g., smell of alcoholic beverage from the suspect's breath,
bloodshot and watery eyes, performance on sobriety tests, admissions,
"Convicted of dwi approx. 12 yrs
ago in nj, left the state without paying surcharge, considering moving
back to nj what would I need to do in order to get a nj license? "
You need to pay off the surcharge --
you should contact DMV to find out the amount and payment instructions.
Sometimes, NJ DMV will give a clearance if a payment plan is entered
into, however, given the age of your conviction, I suspect that the
amount you owe may be reduced to a judgment being handled by a third
party collector. Usually, when these surcharges get this aged, you need
to pay the total before getting clearance for a NJ License. Again, you
should contact DMV to find out the specifics of the surcharge, and
whether you have any other matters outstanding.
"I am being charged with DUI in
New York. My breathalyzer test was .09. Is there anyway that I can
contest NJ taking away my NJ drivers license?"
This is an interesting issue -- the
answer to your question is Yes. Assuming that you plead guilty or are
found guilty of DWI or New York's lesser offense, known as DWAI, the
conviction will be shared with New Jersey. Thereafter, New Jersey DMV
will most probably give credit to the conviction by a virtue of a
doctrine known as reciprocity. If this is a first offense for you, DMV
will seek to suspend your NJ privileges for 6 months and impose the
$1,000.00 yearly surcharge for 3 years. If you have prior DWI offenses,
the penalties are different.
Where your situation gets interesting is that for purposes of the New
Jersey DWI Statute, New Jersey law does not recognize an out of state
conviction as a prior conviction for purposes of sentencing where the
conviction is based exclusively on a blood alcohol concentration of less
than .10%. However, the administrative regulations which apply to the
reciprocity issue do not specifically make this exception as the
The argument which can be made is that since the Statute itself would
not recognize the out of state conviction, DMV should likewise, refuse
to honor it for purposes of seeking to suspend your NJ privileges.
What this all means is that the New York conviction or plea should
properly memorialize the B.A.C. (under the .10%) -- all documents as
well as a transcript of the matter should be obtained from New York.
When NJ DMV seeks to suspend your NJ privileges, you would need to
contest the matter administratively and may wind up seeking to break new
ground in New Jersey Law. Of course, if you could win the NY matter with
either a dismissal, a not guilty verdict, or some other resolution short
of DWI or DWAI, the issues here would be moot. You will definitely need
counsel here to advocate this position given the intricate and novel
nature of the matter.
"My sister was arrested on 2 dwi
violations in which she was in contempt of court. her bail was 1550.00.
The charges are as follows.39:4:50 and 19:18:12 Bail was originally set
for the 2 on 12/94 and 5/91. Is there a statued [sic] of limitation on
any of these charges. Please advise and let me know what she should do.
Thank you "
The "Statute of Limitations" would not apply since the charges
have been filed and your sister simply has not appeared in response to
The consequences of a DWI conviction are
harsh -- your sister has two charges of DWI and therefore faces
sentencing as a 2nd offender if convicted. She should consult with a DWI
defense attorney to better explain her exposure and legal defense(s).
"Can a judgment for retrieval of
delinquent DMV surcharge monies be used to halt the sale of real estate?
If the surcharge has been reduced to a
"judgment," the amount due would be a lien on any real estate
owned by the judgment debtor (i.e., the person who owes the
money). Any judgment would have to be paid before closing or
withheld from the sale proceeds in order for the buyer to receive clear
Is there a statute of limitations on
the$1000 per year DMV surcharge if you
no longer drive or reside in N.J.?
Q: Is that debt ever forgiven?
How long does a DWI in NJ stay on my
The conviction will remain part of
your permanent NJ DMV driving record.
Is there a law regarding how long an
officer must wait before administering a breathalyzer test? If so, could
violation of this render the results useless?
Training and procedure call for the breathalyzer operator to observe the
Defendant for a full 20 minutes prior to administering the breathalyzer.
I assume this is what you mean by "wait" in your question. The
purpose of the 20 minute observation is to assure that any mouth alcohol
has dissipated and to assure that nothing foreign is placed in the mouth
this happened to me, please advise.
after leaving a bar, i decided that i had too much to drink. i pulled to
the side, shoulder, of the road, turned off my car, removed the
keys from the ignition and placed them on the floor of the back-seat,
reclined the drivers seat and went to sleep. i was awakened by the
police, given a field test and arrested. i was given a breath test which
came out as a .10 (i think). I had every intention of not driving and if
necessary, calling someone to come pick me up. I await your response.
In NJ, the State does not have to prove actual operation of the car as
an element of the DWI offense. The State, to show "operation"
of the vehicle in cases where there is none observed, must show (beyond
a reasonable doubt) either (1) an intent to drive (where for example,
one enters a car and manifests an intent to drive), or (2) that the car
was driven (by inference -- where for example a car is on the side of a
busy highway parked).
It may be that the State will be able to show that the car was operated
by inference, but without investigating the State's case, including the
reports and records (called discovery), I cannot say one way or another.
The facts and circumstances of your
case must be fully and carefully reviewed for a more tailored response
to your question(s). Further, there may be other defense issues in your
case other than the operation issue. Only upon a review of the details
of your case can one properly assess the State's case again you.
I am licensed in the state of NJ
but was arrested in Florida for DWI. Will I be eligible for a work
permit to drive in NJ for work or will my license be revoked
completely? Also, will the community service, if imposed, be done
in NJ or Florida?
New Jersey does not allow for work permits -- although Florida law does,
New Jersey Law would not follow Florida's sentence in this regard.
As to the "community service", you would need to check
with Florida to see whether they would allow it to be transferred
to New Jersey. This would be completely up to Florida. The
consequences in New Jersey you asked about all assume you are
convicted in Florida. Your first line of defense is an attorney in
Florida who is committed to defending DWI charges.
What are the penalties for NJ
Statute 39:4-50a, allowing a person under the influence to drive? Thank
The penalties for "allowing"
DWI are the same as for "operating" DWI.
I wondering if dwi offenses include
any points on license. And also is it common to receive other summons on
top of the dwi summons like reckless driving and a failure to stay
within lanes. Because this is what I was issued. it doesn't seem right
to get the other two summons.
A DWI conviction does not result
in DMV "points" -- insurance companies are, however, allowed
to assess "eligibility points" against you resulting in
increased insurance rates (typically, through the "assigned
risk" plan in New Jersey). It is common that a DWI charge will be
accompanied by other moving violations, such as failing to maintain
lane, careless driving, etc.
I was recently arrested for a
second DWI within a 2 year period. I am seeking alcohol treatment for
this problem. Is jail time mandatory on a 2nd offense or are there
alternatives which the court can impose such as community service,
additional treatment? Any information would be greatly
appreciated. Thank you.
There is a mandatory minimum 2 day
jail sentence -- however, the Court may, in their discretion, allow that
48 hours to be served in the Intoxicated Driver's Resource Center. Good
luck with your case and treatment.
Is it possible the NJ DMV surcharge
of $3000 ($1000/yr for 3 years) must be paid up front at the time of
No. The surcharge is collected by DMV
-- you will be billed $1,000.00 each year by DMV.
Can the police take a blood sample
from a person without any form of consent where there is an accident
involving injuries to both driver's?
Yes, provided that the police have
probable cause to believe that the person is DWI.
I was convicted of N.J.S.A. 39:4 -
50 (a) in 1991. I am wondering if at this point it is possible to
expunge my record of this conviction.
No, unfortunately, there is currently
no mechanism whereby a DWI conviction can be "expunged" from
the driving record. As to insurance surcharges, generally they should
last only three years (although the conviction will still show up on
your DMV driver's abstract). There are procedures available to either
vacate a guilty plea or to try and vacate a guilty verdict, those issues
are beyond the scope of your question.
Before you submit to a Breathalyzer
test, are you permitted to request that either a lawyer or a physician
No - however, you are entitled to have
independent tests conducted of your breath, blood or urine by
someone of your own choosing. The police are required to advise
you of this right prior to administering the breath tests.
... and more importantly if
you are read both your Miranda warnings and the Refusal warnings,
and simply are unable to understand such (not because of being
under the influence but because of education) are you entitled to
have someone else opinion of what to do (e.g., lawyer, physician,
parent, etc.) before you say no or yes?
No, you are not entitled to have
someone else explain the rights to you. There may be other defenses
available (assuming you were issued a charge of Refusal) which can only
be assessed after carefully reviewing all of the facts and
circumstances. One possible defense is commonly referred to as the
"confusion doctrine" -- basically, that you were confused
between the conflicting Miranda rights and your obligation to give
samples of your breath.
"If someone refuses to submit
to the Breathalyzer, is that an automatic conviction? Can you be charged
with both a DWI and DWI refusal?"
A charge of Refusal to Submit to Breath Samples does not equal an
"automatic conviction", not will such a charge result in
an automatic license revocation by the state of New Jersey. The
State has the burden of proof as to each element of the charge,
including the charge of Refusal. The State may charge both DWI and
Refusal to Submit arising out of the same alleged incident.
"Are there programs that
better train New Jersey police in detecting and coping with drunk
The most exhaustive and reliable
testing training protocol for detecting intoxicated drivers is a
course entitled "DWI Detection And Standardized Field
Sobriety Testing." The course materials were prepared from
detailed research sanctioned by the United States Department of
Transportation National Highway Traffic Safety Administration (NHTSA).
The course encompasses 40 hours of classroom instruction, assessment of
intoxicated individuals, and a final written examination. The course
teaches, among other things, cues for detecting intoxicated drivers on
the roadway and more importantly, validated sobriety tests (called
standardized field sobriety tests). These tests (known by the acronym
SFSTs) are the one-leg-stand, the walk-and-turn, and the horizontal gaze
nystagmus. Research has concluded that these three tests are the most
(and only) reliable tests for assessing a b.a.c. above a .10% when they
are administered and scored in the proscribed standardized manner(s).
For more information about this training, please visit:
(Article by New Jersey DWI Defense Lawyer, Greggory M. Marootian, Esq.
(who is NHTSA trained in administering SFSTs) regarding standardized
field sobriety tests).
(NHTSA official site and reference information regarding SFSTs).
(US Department of Transportation Cues for Detecting Drunk Drivers at
What are the chances of me either
being put in jail or the slap program for a blood sample showing
my b.a.c. @.36? I'm nervous and I was advised to get a lawyer, but
would that be unwise to plead not guilty at the arraignment?
A high blood alcohol concentration (b.a.c.) such as the one alleged here
by the State is almost always considered an "aggravating"
circumstance to courts when deciding on a sentence (upon a finding
of guilt or a plea of guilt). This means that most courts will be
inclined to impose a sentence beyond the minimums allowed by New Jersey
A few general comments: (1) You should immediately retain Counsel - let
your Attorney speak for you at this point (do not say a word to
the Judge, Prosecutor, or Court Personnel - let your Attorney do
your talking for you at this early stage), (2) You can always change
your plea to Guilty after the Arraignment - a Not Guilty Plea is almost
always the advisable course at an Arraignment (but again, you should
speak with Counsel), (3) Sentencing will occur only if you plead guilty
or are found guilty - Counsel can determine the strength of the State's
case against you and advise you accordingly, (4) If you are going to be
found guilty, or if you go to trial with the possibility of being found
guilty, your Counsel can plan and advocate on your behalf to attempt to
minimize the penalties (this is an art which would depend on your
individual circumstances, the court, and the facts in your case).
My son has been charged for dwi. I
think this will be his third time. He was charged when he was 18 then
again when he was 25 and now for the third time at 33 will this count
for his third offense or second?
The law in New Jersey is this: "[I]f a third offense occurs more
than 10 years after the second offense, the court shall treat the third
conviction as a second offense for sentencing purposes." see
The exclusion of prior DWI convictions is sometimes referred to as a
"step down." In order for a third offender to be entitled to a
"step down" (to second offender status), there must be a ten
year gap between second and third offenses.
Is it true that if you have an out
of state license and are stopped in NJ for DUI, that you are issued a NJ
license on the spot and it is immediately
suspended so that you CANNOT drive in NJ until the surcharge is paid to
No, New Jersey does not impose an
"immediate" license revocation (or
revocation of driving privileges) when a driver is merely charged with
(N.J.S.A. 39:4-50). There is misinformation floating around the Internet
this regard which suggests that New Jersey will impose a revocation
before a DWI charge is adjudicated.
If and when the person is found guilty of the offense (or pleads
guilty), the Court will then impose a mandatory revocation of NJ driving
privileges. The NJ conviction will also be shared with the State where
the person is licensed, and that State will generally take
administrative action against the person's privileges (e.g., loss of
privileges in that State).
on New Jersey
lawyer, Greggory M. Marootian when you need
professionals to give you the facts, and restore your integrity.