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QUESTIONS & ANSWERS
Regarding New Jersey DWI
Answers to recent questions received at our "Questions & Forum" area: Question: "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 helpful." Answer: 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. Question: 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. Question: "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.. please answer" Answer: 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 Question: "i
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 Answer: 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. Question: "Is a conviction of 'baby dwi' uderage DWI a prior conviction for sentence purposes?" Answer: 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. ----- Question: "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 adult?" Answer: 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. ----- Question:
If
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.
Answer: This 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. ----- Question: Does the State of New Jersey offer hardship drivers license (for work purposes) to those convicted of their 1st offense Of DUI/DWI? Answer: No. ----- Question: 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. ----- Question: 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. Answer: 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. ----- Question: 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? Answer: 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. ----- Question: 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? Answer: 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 loss. ----- Question: 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? Answer: 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. ----- Question: 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! Answer: 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). ----- Question: 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? Answer: 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." ----- Question: 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? Answer: 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. Question: 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. ----- Question: 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? Answer: 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." ----- Question: "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." Answer: 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. ----- Question:
"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?"
Answer: 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." Answer: 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 you ask. ----- Question: "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 property." Answer: The State must prove that the defendant operated or intended to operate the vehicle. ----- Question: "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?" Answer: 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. ----- Question: "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. " Answer: 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 proving operation. ----- Question: "My 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?" Answer: This would be a first offense for sentencing purposes if you are convicted or plead guilty. ----- Question: 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. Answer: 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 http://www.njdwidefense.com/Hiring.htm for my tips on hiring a lawyer for your nj dwi case. ----- Question: Can you be arrested for DWI in NJ without having road side test done? Answer: 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." ----- Question: 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. Answer: It has been in effect since January 21, 2004. ----- Question: "does nj have a program that allows a person whom drives for a company that will allow him to drive during working hours only." Answer: No. ----- Question:"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 appreciated." Answer: 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. ----- Question: "what is the time limit for nj dwi records" Answer: A nj dwi conviction remains part your driving history permanently. ----- Question: "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?" Answer: 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. ----- Question: "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? Thank you!" Answer: This is 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. ----- Question: 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.
Answer: Yes, 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 days. ----- Question: "I 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?" Answer: New 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 symptoms. ----- Question: "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" Answer: This dwi would be a second if you were convicted or plead guilty. ----- Question: "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??" Answer: You most 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. ----- Question: "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?" Answer: 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. -----Question: "How long will the DUI be accessible on my DMV record to potential employers and insurance carriers?" Answer: 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. ----- Question: "Are 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?" Answer: No - currently, there are no limited licenses. ----- Question: "is there such a thing as a restricted drivers license to go to work and school if u are convicted of a dwi?" Answer: NO - not in New Jersey. ----- Question: "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 reply." Answer: 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 administrative hearing. ----- Question: "I've recently 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..." Answer: New Jersey will seek a 6 month license revocation (assuming this is your first offense), and impose yearly $1,000.00 surcharges. ----- Question: "A third arrest. The second arrest was over ten years ago. What is the worst case senario/ best case senario?
Answer:
Best Case - Not Guilty. Worst Case = second (nj dwi) offender status. ----- Question: "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?
Answer:
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. ----- Question: "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"
Answer:
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. ----- Question: "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?" ----- Answer: 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 sure. Question: "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. ----- Question: "If you were convicted of a 2nd dwi and the judge did not give the community service would you still have to do it?" Answer: No - the Judge's Order (Sentence) is controlling. However, the State or even the Court on their own, can correct the sentence. ----- Question: "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." Answer: 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 course increases. ----- Question: "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. " Answer: 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. ----- Question: "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?" Answer: Second offense under NJ Law - 2 year loss of license. ----- Question: "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. ----- Question: "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." Answer: There is no procedure to expunge a nj dwi conviction. ----- Question: "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?" Answer: 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. ----- Question: "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 offense. ----- Question: "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. Answer: 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." ----- Question: "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. ----- Question: 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. ----- Question: "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?" Answer: 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. ----- Question: "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 doctor’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 drive again?" Answer: New Jersey DWI Law does not allow legally imposed license revocations to be reduced even in compelling Question: "Is a nj dwi dui a misdemeanor?" A nj dwi dui conviction is a motor vehicle violation. ----- Question: "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?" Answer: 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. ----- Question: "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?" Answer: 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. ----- Question: "Is a New Jersey DUI - DWI Considered a Felony or Misdemeanor?" A conviction for NJ DUI - DWI is neither - it is a motor vehicle violation. ----- Question: "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 him?" Answer: 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 jail. ----- Question: "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. ----- Question: "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?" Answer: Only if the passenger is proven to have allowed the operation. Allowing a driver to operate drunk is a violation of nj dwi law. ----- Question: "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 limitations?" Answer: 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). ----- Question: "is there a dawn till dusk license in New Jersey." Answer: No - the license revocation is absolute with no work or other special licenses. ----- Question: "I would like to know if a NJ DWI is considered a criminal offense" Answer: No - a NJ DWI charge is a motor vehicle violation. ----- Question: "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?" Answer: At best a third offender - which for sentencing purposes is the same as a fourth offender. ----- Question: "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?" Answer: 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. Question: "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 offense?" Answer: 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. Question: "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?" Answer: 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." Question: "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 jail. Question: "Is 3rd offense of DWI considered a felony?" Answer: No - not in New Jersey. Question: "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 much. " Answer: 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. Question: "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? " Answer: 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. ----- Question: "I have been convicted of a DWI in 1995, is this conviction considered a felony?" Answer: In NJ, a DWI is not a felony or crime - it is a motor vehicle violation. ----- Question: "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? Answer: 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. ----- Question: "can past convections be over turned if the breath test was done inproperly." Answer: 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. ----- Question: "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." Answer: 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. ----- Question: "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." Answer: 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. ----- Question: "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. " Answer: The law will look at the gap between the snd and third offense - the time of the first is not relevant. ----- Question: "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. " Answer: Yes. ----- Question: "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. Answer: 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. ----- Question: "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? " Answer: No - if you are suspended out of state, NJ law regards you and being suspended here. ----- Question: "In New Jersey will they allow a 1st time offender to have driving privliges during working hours?" Answer: Common Question - the answer is, unfortunately, No. ----- Question: "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." Answer: 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. ----- Question: "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?" Answer: 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. ----- Question: "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. ----- Question: "can i get a work license. I am about to lose my job" Answer: No, there are no work or conditional licenses allowed in New Jersey. ----- Question: "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. ----- Question: "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?" Answer: 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"). ----- Question: "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 ???" Answer: 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. ------ Question: "After ten years is a dwi expunged, or can it be use against you as a second offense?" Answer: 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. ------ Question: "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??" Answer: If you did not respond to the ticket
by entering a not guilty plea ------ Question: "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 DWI. ------ Question: "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. ------ Question: "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. " Answer: 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. ------ Question: "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 ------ Question: "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." Answer: No - there are no work or conditional licenses in New Jersey. The license revocation resulting from a DWI conviction is absolute. ------ Question: "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." Answer: 180 days - you have to go to a Regional NJ DMV to get the license reissued and pay DMV their restoration fee. ------ Question: "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% or more. ------ Question: "is it considered a felony offense" Answer: No - DWI is not a felony in New Jersey - it is a motor vehicle offense ----- Question: "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. Answer: 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. ------ Question: "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. ------ Question: "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. ----- Question: "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. " Answer: 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. ------ Question: "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? " Answer: 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. ------ Question: "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." Answer: 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. ------ Question: "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?" Answer: 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. ------ Question: "What is the time frame for a speedy trial the arrest took place in march of 2001. " Answer: 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. ------ Question: "If under 21 when got DUI, is expungment possible after turning 21?" Answer: No. ------ Question: "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?" Answer: 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 to attend. ------- Question: "How can I get my DUi expunged?
" You cannot - a DWI Conviction in New
Jersey (as well as all motor vehicle violations) cannot be ------- "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
apply. 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 y |