- First Offense DWI (see below)
- Second Offense DWI (see below)
- Third Offense DWI (see below)
- Underage DWI
- Federal Court DWI
- Marijuana DUI
- Prescription Drug DUI
- DWI / DUI Blood Test Refusals
As with any criminal charge, you are considered innocent unless and until a prosecutor has proven your guilt beyond a reasonable doubt. To stop this from happening, there has to be some issue that shows the prosecution’s case to be flawed. The key to identifying problems in the prosecution’s DWI/DUI case is a defense attorney’s experience.
Understanding the Impact of the New Jersey DWI Statutes NJSA 39:4-50
New Jersey’s courts have defined “intoxication” or “being under the influence” as a “substantial deterioration or diminution of the mental faculties or physical capabilities of a person” resulting from the ingestion of alcohol or drugs. For the purposes of the laws in New Jersey, driving under the influence (DUI), drunk driving, and driving while intoxicated (DWI) are all the same.
New Jersey’s drunk driving law (NJSA 39:4-50) and its penalties are quite strict. You cannot plead to a lesser offense if you are charged with DWI in New Jersey. Once convicted of a DWI offense, you will lose your license. This means that you cannot even get a limited driving license if you are convicted of DWI. You will also be fined hundreds of dollars and may well be jailed.
By law, a driver is considered to be intoxicated if he or she registers a 0.08% blood alcohol content on a breath or blood test. But, in New Jersey, a driver can be convicted of DWI if he or she has ingested any amount of alcohol and the court is satisfied through a police officer’s testimony that the driver exhibited a “substantial deterioration or diminution of the mental faculties or physical capabilities.”
You can even be convicted for DWI if you are sleeping in your car after drinking. You can be outside of your vehicle while it is parked, locked and not running and still be arrested and convicted of DWI in New Jersey.
Prosecutors have a professional obligation to win convictions in DWI cases. They are not there to do you any favors, but they do recognize that it will be more difficult to prosecute a case if the accused has a DWI lawyer.
Penalties for New Jersey Drunk Driving Convictions
Penalties for violation of New Jersey drunk driving laws are severe and grow harsher with higher BAC and additional offenses, including:
DUI / DWI First Offense
With a BAC of 0.08 to 0.09 percent:
With a BAC of 0.10 percent or more:
- Fine of $300-$500
- Up to 30 days in jail
- 7- to 12-month driver’s license suspension
- Two 6-hour classes at the Intoxicated Driver Resource Center over two consecutive days
- Annual surcharge penalty of $1,000 for 3 years
Second Offense
- Fine of $500-$1,000
- 2 to 90 days in jail
- 2-year driver’s license suspension
- 48 consecutive hours detainment in a regional Intoxicated Driver Resource Center
- Annual surcharge penalty of $1,000 for 3 years
- Installation of an ignition interlock device for 1 to 3 years after license restoration
Third Offense
- $1,000 fine
- 180 days in jail
- 10-year driver’s license suspension
- Detainment in an in-patient alcoholism treatment program
- Fee paid to the Intoxicated Driver Resource Center as decided by the court
- Annual surcharge penalty of $1,000 for 3 years
- Installation of an ignition interlock device for 1 to 3 years after license restoration
Any DWI / DUI conviction also requires:
- A Drunk Driving Enforcement Fund surcharge of $100
- A Motor Vehicle Commission restoration fee of $100
- An Intoxicated Driving Program fee of $100
- A Violent Crimes Compensation Fund fee of $50
- A Safe and Secure Community Program fee of $75
A judge may also order the revocation of the defendant’s vehicle registration.
A parent or guardian convicted of driving while intoxicated with a passenger in the motor vehicle who was 17 years of age or younger is also guilty of a disorderly persons offense. They will lose driving privileges for up to 6 months and be required to perform community service for up to 5 days.
Refusing to Take a Breath Test After a DWI Arrest
Any individual who drives a motor vehicle on a public road or highway in New Jersey gives his or her implicit consent to submit to a breath test if suspected of driving while intoxicated. A police officer must have reasonable grounds to believe that a person is driving while intoxicated to justify the collection of a breath sample. But a driver’s refusal to submit to a test when requested can result in mandatory penalties.
First Offense
- A fine of $300 to $500 and a mandatory drunk driving enforcement fund surcharge.
- License suspension for 7 to 12 months. The suspension may run concurrently with a related DWI conviction at the judge’s discretion.
- Two 6-hour classes at the Intoxicated Driver Resource Center over two consecutive days.
- An ignition interlock device installed on all registered vehicles for the period of the license suspension plus an additional period upon restoration of driving privileges of 6 to 12 months.
- $1,000 Division of Motor Vehicles surcharge annually for three years.
Second Offense
- A fine of $500 to $1,000 and a mandatory drunk driving enforcement fund surcharge.
- License suspension for 2 years. The suspension may be imposed for a second refusal to submit to a breath test or for refusing after a previous DWI conviction.
- Ignition interlock device installed on all registered vehicles for the period of the license suspension plus an additional 1 to 3 years after license restoration.
- Division of Motor Vehicles surcharge of $1,000 a year for three years, and the individual’s license will remain suspended until the surcharge is paid in full.
There is no mandatory jail sentence for a second offense of refusal. Therefore, there is a clear incentive to plead to the refusal to submit instead of a related driving while intoxicated charge if you are charged with both.
Third Offense
- A fine of $1,000 and a mandatory drunk driving enforcement fund surcharge of $100.
- License suspension for 10 years.
- Ignition interlock device installed on all registered vehicles for the period of the license suspension plus an additional 1 to 3 years after license restoration.
- Participation in an Intoxicated Drivers Resource Center alcohol education program. The IDRC may impose conditions on the restoration of the driver’s license, such as mandatory attendance at Alcoholics Anonymous meetings.
To obtain a conviction for refusing a breath test, the state must prove that:
- The police officer possessed probable cause to believe that the accused was driving while intoxicated or operating under the influence of drugs.
- The defendant was arrested for DWI or DUI.
- There was a proper request to submit a breath sample.
- The accused refused to perform the test.
New Jersey courts have ruled that the following can be construed as a refusal to submit to a breath test:
- Silence. The accused must assert a willingness to perform the test. While an individual has the constitutional right to remain silent, New Jersey courts have expressly held that this right does not apply to questioning regarding consent to a breath test. Accordingly, silence is almost always construed as a refusal to submit to the breathalyzer.
- Short Samples. A refusal charge may be filed if an individual “fakes” blowing to supply a breath sample or is unable to provide sufficient air volume or maintain volume for the necessary time period to register a valid reading.
- Outright Refusals. When an individual refuses consent for a breath test with a flat “No” or another negative response to the request, a summons for refusing to provide a breath sample may be filed immediately. In addition, when there is an express refusal, police are not required to read the second paragraph of the Standard Statement requesting consent, which advises the accused that they will be charged with refusing the test.
- Delaying or Stalling Administration. This is engaging in any tactics that are obviously intended to delay the efforts to start the test. In this regard, the Supreme Court of New Jersey clearly stated in State v. Widmaier, 157 N.J. 475 (1999), an individual suspected of driving while intoxicated has no right to delay breath testing. Efforts to stall can, therefore, be interpreted as a refusal.
- Conditional Consent. New Jersey courts have expressly held that anything short of an unequivocal “Yes” or “I will” can be construed as a refusal. As a result, if an accused individual responds to a police officer with “If…”, “Can you tell me…” or anything other than an affirmative and unconditioned agreement to take the test, it can be interpreted as a refusal to submit to the breath test.
What NJ Prosecutors Must Prove to Convict You of DWI
To satisfy a New Jersey court that the defendant is guilty of driving under the influence, the prosecution must prove the following elements of the crime of DWI:
- Operation of a vehicle or vessel. The text of New Jersey’s law does not define the operation of a vehicle. But New Jersey courts have said, “Operation may be proved by actual observation of the defendant driving while intoxicated, by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by defendant’s admission.” (State of New Jersey v. Donna Ebert, 377 N.J. Super. 1, 871 A.2d 664. (2005))
- By the defendant. There must be something in the prosecutor’s evidence that links you to the vehicle. Usually, this is the officer’s testimony that he or she observed and stopped your vehicle and found you behind the wheel. However, if you were not driving but were “in or out of the vehicle under circumstances indicating” you had driven the vehicle, the officer would have to explain how he or she surmised that you had actually driven the vehicle – and that you were intoxicated at the time.
- While intoxicated. The court’s finding that the defendant was under the influence can be based upon the arresting officer’s testimony, which may rely on observation of the defendant’s driving or demeanor and/or the results of field sobriety tests, and the officer’s training and experience, which enables such a judgment.
- And/or with a blood alcohol or alcohol concentration at or above the limit set by statute. A blood-alcohol content of 0.08% or higher is considered “per se” evidence of intoxication. The prosecutor will try to prove a 0.08% BAC or more by introducing results of a chemical test of the defendant’s blood, breath or urine. But such tests are not valid unless they are conducted in a timely manner after an arrest and under other specific circumstances.
Each of these elements must be proven beyond a reasonable doubt or the court should hand down a “not guilty” verdict. If a prosecutor knows he or she cannot prove these elements of a DWI/DUI charge, the charges should be dropped. As your attorneys, we would scrutinize the facts of your case as they applied to each of these elements and determine where and how the prosecution’s case can be effectively attacked.
How We Will Work to Get Your NJ DUI Charges Dismissed
Being charged and convicted for drunk or drugged driving in New Jersey can have a drastic and long-lasting impact on your life. Regardless of the circumstances surrounding your DWI / DUI arrest, you have a right to and deserve a strong and dedicated legal defense that seeks the best available outcome for you.
The sooner the DUI defense attorneys at Pagliara Law Group can get involved in your case, the better the opportunity to dispute the charges you face. There are many defenses to driving-while-intoxicated charges in New Jersey. Regardless of the allegations, prosecutors must prove their case. Our task, which we approach with the utmost seriousness, is to raise every challenge and poke as many holes in the prosecution’s case as possible.
The Arrest
For the traffic stop that led to the DWI charges you face to be valid, it must have been supported by reasonable suspicion that a motor vehicle violation had been committed. Under State v. Carpentieri, the New Jersey Supreme Court held that the police must have an explainable and reasonable suspicion that a violation of the traffic laws has occurred in order to make a stop for DWI.
Once an individual is stopped, the police must have probable cause to believe that the driver is intoxicated to make an arrest and conduct a breathalyzer test. Typically, the law officer will administer one of a variety of field sobriety tests, although only three have been scientifically validated as accurate if administered correctly. You have the right to refuse a field sobriety test, but that won’t stop you from being arrested. Doing well on a field sobriety test probably will not stop you from being arrested, either, but it may be evidence in your favor later.
Arraignment
When a driver is charged with a DWI, DUI, or refusal to submit to a test in New Jersey, the defendant receives a complaint. After the complaint is filed, the defendant makes his or her first appearance at an arraignment, where the charges are read and the defendant is informed of his or her rights under the law, and enters a plea of guilty or not guilty.
If you have engaged an attorney to represent you, the initial appearance can normally be waived. The arraignment can be “adjourned” by the DUI lawyer sending a letter of representation to the court advising it that you are represented, were advised of your rights, and that you are entering a plea of “not guilty.”
Discovery
The discovery process begins when the prosecutor turns over all evidence the state has against a defendant to the defendant’s attorney. We also will get your statement and any other available evidence, and start asking questions. At this point, we can determine whether there are any issues that call for immediate dismissal of the charges, such as:
- Lack of probable cause or reasonable suspicion for stopping you
- Lack of probable cause to believe you were intoxicated
- Failure to advise you of your Miranda rights against self-incrimination
- Improper or untimely administration of breath-alcohol content testing (with the Draeger Alcotest “breathalyzer” instrument)
- Improper inspection and certification of the Draeger Alcotest breathalyzer machine
- Illegal “search and seizure” if blood was drawn to test the alcohol content
In many cases, we can contest the chemical test administered. The standard instrument used in New Jersey, the Draeger Alcotest “breathalyzer” instrument, is subject to certain rules and restrictions, and the operator should record the steps taken to calibrate it before administering each test. It must also be maintained between uses and inspected regularly. There is a coordinator’s certificate required to show that a breathalyzer machine operator knows how to precisely calibrate, use and inspect these machines to ensure they are functioning properly.
Our attorneys, who are certified to operate and maintain the Draeger Alcotest 7110 MKIIIC alcohol breath test instrument, can question a breath test operator closely and identify mistakes that call a breath test into question. Many smaller New Jersey precincts have few if any certified breathalyzer operators on staff, and it is not unusual for us to demonstrate that test results are of questionable validity.
Similarly, to prove a drug DWI in New Jersey, the law generally requires that the state subject a suspect to a series of tests administered by a drug recognition expert (DRE). If the police station you were tested at did not have an expert on staff when you were there, the evidence will in all likelihood be inadmissible.
Charged With a Drug DWI?
New Jersey law requires a drug recognition expert (“DRE”) in the vast majority of drug DUI cases. A DRE is a police officer who has special training to identify drug impairment. Training to become a drug recognition expert is very involved and many departments in the state do not even possess one on staff, let alone one on every shift. If you were charged with a prescription drug DWI or driving under the influence of some other drug, you should know that your offense is probably highly defensible. The lawyers on our staff possess decades of experience defending DWI charges and we are ready to assist you. Here is some important information you might want to know about drug recognition experts.
Categories of Drugs the DRE Is Supposed to Recognize
There are seven (7) categories of drugs that a drug recognition expert is trained to detect — Central Nervous System Depressants, Inhalants, Dissociative Anesthetics, Cannabis, Central Nervous System Stimulants, Hallucinogens and Narcotic Analgesics.
Tests Administered by the Drug Recognition Expert
In accordance with the standards established by the DRE certification body, the International Association of Chiefs of Police, there is a twelve (12) step protocol to detect drugs and impairment.
- Breath Alcohol Test: the suspect is to be breathalyzed to determine whether or not alcohol is a factor in his or her appearance, function, etc.
- Consultation with the Arresting Officer.
- Preliminary Examination: initial questioning of the suspect to gather as many relevant facts as possible.
- Eye Examination: this primarily involves examination of the pupils and the existence or non-existence of nystagmus (i.e. smooth tracting of the eyes horizontally or vertically).
- Divided Attention Tests: these are the classic field sobriety tests, namely, the one leg stand test, walk and turn test, a Rombergs Balance test, and the Finger to Nose Test.
- Examination of Vital Signs: the heart rate/pulse, blood pressure and body temperature of the suspect is to be taken.
- Dark Room Examination
- Examination of Muscle Tone
- Examination for Injection Sites
- Suspect’s Statement & Any Other Observations
- Opinion of the Evaluator
- Toxicology Sampling: a blood, saliva and/or urine sample should be taken for laboratory testing.
As you might conclude from the aforesaid, DWI cases i
We may be able to establish other defenses and bring them to the prosecution’s attention. For example, it may be that a mechanical defect in your vehicle caused the driving problems that led to the traffic stop. Perhaps a medical condition adversely affected your demeanor and/or ability to complete field sobriety tests.
Trial on DWI Charges
If we cannot get charges against you dismissed, there will be a trial before a judge in the municipal court where you were charged. There is no right to a jury trial for DWI offenses. If found guilty, the municipal court judge will sentence you according to state guidelines for DWI and DUI offenses.
If a conviction cannot be avoided, our criminal defense attorneys will work to have BAC readings, or blood or urine test results excluded or minimized so that you receive the minimum punishment available.
We can also negotiate with prosecutors and/or argue before a judge as to proper treatment of any prior convictions you have. Sentencing can vary significantly if your prior convictions are for a DWI rather than a refusal to submit to a breathalyzer test.
If your first conviction is for refusing to submit to testing rather than for a DWI, then New Jersey law says you must be sentenced as a first offender. However, if your prior conviction is for a DWI, and you are subsequently charged with a refusal, then this will be considered your second offense and the penalties will be much more severe.
Our attorneys can ensure that the law is applied fairly in relation to the unique circumstances of your case. This requires a defense attorney who fully understands the law, and who has a relationship with local prosecutors and judges that ensures their arguments will be heard and considered. It also requires a defense attorney whose firm allows spending the time and resources needed to properly investigate and fully challenge DWI charges.
Pagliara Law Group can provide that level of representation to you if you face a drunk driving charge in New Jersey. Our attorneys have worked DWI and DUI cases as prosecutors and defense attorneys in courts across the state. We recognize that people make mistakes. We can help you keep a DWI or DUI conviction from damaging your life today and limiting your opportunities in the future.
Meet With Our New Jersey DWI Lawyers Now
If you have been charged with driving while intoxicated or under the influence (DWI or DUI) anywhere in New Jersey, a DUI defense attorney from Pagliara Law Group can work to obtain the best possible resolution of your case. It is imperative to hire an experienced N.J. DWI lawyer as soon as possible after an arrest. There are opportunities to challenge your arrest and/or evidence, and to avoid potentially costly and long-lasting penalties.
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