FREQUENTLY ASKED QUESTIONS

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

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

The statute also makes it unlawful to operate a motor vehicle while “under the influence of … [a] narcotic, hallucinogenic or habit-producing drug.”

The New Jersey DWI statute creates two alternative methods of proof as to an alcohol-related DWI offense: (A) operating a motor vehicle while “under the influence of intoxicating liquor,” and (B) operating a motor vehicle with a “blood alcohol concentration of .08% or more.”

As to a drug-related offense, the statute prohibits operation while being “under the influence” of a prohibited class of drugs.

Under the influence is defined generally as the consumption of alcohol or drugs “to the extent that [the defendant’s] physical or mental faculties are deleteriously affected.”

2. What are the penalties if I am convicted?

The penalties depend on whether you have previously been convicted of DWI, the proven BAC result, and whether the charge is a drug or alcohol-related DWI, as follows:

  • 1st Offense with a BAC of .08% and under .10%, or “under the influence” of alcohol (no BAC result).

Fine: $250 to $400.

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

Loss of License: Three months, or until and unless “the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates” to remain in the vehicle for three months.

The ignition interlock is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration, under NJ law, a BAC of 05%.

Fines & Costs: $100 DWI Enforcement Fund, $125 Statutory Surcharge, $50 Violent Crime Compensation Board Fund, $75 Safe Neighborhood Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (additional fees for mandatory IDRC participation and out-patient counseling if IDRC-referred), up to $33 in court costs, and New Jersey MVC Surcharge of $1,000 a year for three years.

  • 1st Offense with a BAC of .10% to .15%.

Fine: $300 to $500.

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

Loss of License: Seven to twelve months, or until and unless “the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates” to remain in the vehicle for between seven and twelve months.

The ignition interlock is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration, under NJ law, a BAC of 05%.

Fines & Costs: $100 DWI Enforcement Fund, $125 Statutory Surcharge, $50 Violent Crime Compensation Board Fund, $75 Safe Neighborhood Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (additional fees for mandatory IDRC participation and out-patient counseling if IDRC-referred), up to $33 in court costs, and New Jersey MVC Surcharge of $1,000 a year for three years.

  • 1st Offense with a BAC of 15% or higher.

Fine: $300 to $500.

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

Loss of License: Four to Six Months, and “the installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates during and following the expiration of the period of license forfeiture … for … nine months [to] 15 months.”

The ignition interlock is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration, under NJ law, a BAC of 05%.

Fines & Costs: $100 DWI Enforcement Fund, $125 Statutory Surcharge, $50 Violent Crime Compensation Board Fund, $75 Safe Neighborhood Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (additional fees for mandatory IDRC participation and out-patient counseling if IDRC-referred), up to $33 in court costs, and New Jersey MVC Surcharge of $1,000 a year for three years.

  • 1st Offense: Under The Influence of Drugs.

Fine: $300 to $500.

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

Loss of License: Seven months to One Year.

Fines & Costs: $100 DWI Enforcement Fund, $125 Statutory Surcharge, $50 Violent Crime Compensation Board Fund, $75 Safe Neighborhood Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (additional fees for mandatory IDRC participation and out-patient counseling if IDRC-referred), up to $33 in court costs, and New Jersey MVC Surcharge of $1,000 a year for three years.

  • 2nd Offense (Within ten years of 1st Offense): Alcohol or Drugs

Fine: $500 to $1,000.

Community Service: 30 Days.

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

Loss of License: One to two years and “the installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates during and following the expiration of the period of license forfeiture … for … two years [to] four years.”

The ignition interlock is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration, under NJ law, a BAC of 05%.

Fines & Costs: $100 DWI Enforcement Fund, $125 Statutory Surcharge, $50 Violent Crime Compensation Board Fund, $75 Safe Neighborhood Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (additional fees for mandatory IDRC participation and out-patient counseling if IDRC-referred), up to $33 in court costs, and New Jersey MVC Surcharge of $1,000 a year for three years.

  • 3rd Offense (Within Ten Years of a 2nd Offense): Alcohol or Drugs

Fine: $1,000.

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

Loss of License: Eight Years.

Ignition Interlock: For the term of the suspension, and two to four years following restoration.

The ignition interlock is a device installed on a car that prevents operation if, when blown into, registers a predetermined blood alcohol concentration, under NJ law, a BAC of 05%.

Fines & Costs: $100 DWI Enforcement Fund, $125 Statutory Surcharge, $50 Violent Crime Compensation Board Fund, $75 Safe Neighborhood Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (additional fees for mandatory IDRC participation and out-patient counseling if IDRC-referred), up to $33 in court costs, and New Jersey MVC Surcharge of $1,000 a year for three years (unless the event occurred within three years of the last one in which case the surcharge is $1,500 per year for three years).

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

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

  • 1st Offense: Nine to fifteen-month loss of license until and unless “the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates” to remain in the vehicle for a period of between nine to fifteen months, and referral to the Intoxicated Driver Resource Center.

Fines & Costs: $300 to $500 fine, $100 DWI Enforcement Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) administrative fee (additional fees for mandatory IDRC participation and out-patient counseling if referred by the IDRC), up to $33 in Court Costs and New Jersey MVC Surcharge of $1,000 per year for three years.

  • 2nd Offense: One to two-year license loss, and “the installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates during and following the expiration of the period of license forfeiture … for … two years [to] four years,” and referral to the Intoxicated Driver Resource Center.

Fines & Costs: $500 to $1,000 fine, $100 DWI Enforcement Fund, $100 NJ MVC restoration fee, $100 Intoxicated Driver Resource Center (IDRC) administrative fee (additional fees for mandatory IDRC participation and out-patient counseling if referred by the IDRC), up to $33 in Court Costs and New Jersey MVC Surcharge of $1,000 per year for three years.

  • 3rd Offense: Eight-year license loss, and “the installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates during and following the expiration of the period of license forfeiture … for … two years [to] four years,” and referral to the Intoxicated Driver Resource Center.

Fines & Costs: $1,000 fine, $100 DWI Enforcement Fund, $100 NJ MVC Restoration Fee, $100 Intoxicated Driver Resource Center (IDRC) Administrative Fee (Additional fees for mandatory IDRC participation and out-patient counseling if referred by the IDRC), up to $33 in Court Costs and New Jersey MVC Surcharge of $1,000 per year for three years(unless the event occurred within three years of the last one in which case the surcharge is $1,500 per year for three years).

Note: A prior DWI conviction counts as a prior offense under the Refusal Statute so as to enhance the statutory penalties.

4. How are the penalties decided?

The Court must first look to the DWI Statute. However, where there is sentencing discretion, the Court will weigh and balance mitigating and aggravating factors. There are factors that tend to “mitigate” (lessen) a sentence and factors that tend to “aggravate” (heighten) a sentence. In cases where there is sentencing discretion, presenting mitigating factors is essential. The Court will weigh and balance mitigating and aggravating factors in crafting a sentence; for example:

* The defendant’s driving pattern (e.g., very high speed, reckless-type operation, or an accident will tend to aggravate)

* Any harm inflicted on others (injury to others will aggravate)

* The defendant’s driving history, considering how long the defendant has been a licensed driver and the seriousness, frequency, and timing of any prior infractions

* The likelihood that the defendant will commit further violations

* The need for deterrence

* Whether there were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense

* Whether this was the defendant’s first violation or whether he or she had gone for a substantial period of time without violations before the present offense

* Whether the defendant’s character and attitude indicate that he or she is unlikely to commit another violation

* The defendant’s BAC (a high BAC will tend to aggravate)

* Mental health issues and treatment (self-help mental health counseling and treatment tend to mitigate)

* Whether the defendant was respectful and cooperative with law enforcement during the arrest and in entering a voluntary plea (will tend to mitigate)

* The impact (hardship) the sentence would cause to the defendant or the defendant’s dependents

* Defendant’s work and philanthropic history

* Any other factor unique to the defendant, and relevant for the court’s consideration

5. What happens if I am involved in an accident and someone else is injured?

Driving While Intoxicated and causing injuries to another is a criminal offense, Assault by Auto under N.J.S. 2C:12-1c. Criminal offenses are heard in the County Superior Court, not the local Municipal Court.

In addition to the penalties for the underlying DWI offense, the defendant is exposed to criminal sentencing if convicted, either for a 3rd-degree crime of assault by auto if “serious bodily injury results” (3 to 5 years in prison) or a 4th-degree crime if mere “bodily injury results” (up to 18 months in prison). There are non-jail alternatives, such as probation or pre-trial-intervention. These dispositions are dependent on many factors, including the seriousness of the injuries and the defendant’s prior criminal and motor vehicle history.

6. Can I obtain a conditional (restricted) driver’s license if I am convicted?

Yes, in cases where the ignition interlock device is permitted in place of license loss (E.G., a 1st DWI offense with a BAC under .15%, or a 1st Refusal Offense). In other cases, the revocation of your driver’s license is mandatory and absolute for the prescribed period, absent a successful defense challenge.

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

A New Jersey DWI or Refusal conviction (or a substantially similar out-of-state conviction) permits insurance carriers to refuse to renew or issue automobile insurance coverage. Insurance is still available through the New Jersey “assigned risk” (i.e., high-risk) plan, the New Jersey Personal Automobile Insurance Plan (NJ P.A.I.P.), at substantially increased rates for about three years.

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

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

New Jersey Law provides that a .08% blood alcohol reading alone is sufficient to sustain a conviction. The law also provides for increased penalties for BAC results of .10% and .15%. The reliability and validity of the BAC result must, therefore, be examined (i.e., was the instrument operated properly and was the instrument functioning correctly). If the instrument was not operating or operated properly by a qualified technician, the test results could be excluded from evidence. Also, there may be medical, defendant-specific, or fact-specific issues that could have adversely influenced a result.

Assuming that the breath (or blood) results can be excluded or compromised, the State may still seek to prosecute the DWI case based on what is commonly referred to as “observation” evidence (that the defendant was “under the influence”). The “observation” evidence consists of, for example, the defendant’s driving pattern, appearance, demeanor, and performance on field sobriety tests.

The State’s case will generally consist of observations of the defendant before and after the arrest. These can include, for example, erratic driving, flushed face, bloodshot & watery eyes, speech pattern, boisterous demeanor, the odor of alcoholic beverage on breath, slow or fumbling hand movements, unsteady balance, etc. The State’s case will usually also include the defendant’s performance on field sobriety tests (E.G., walk and turn, finger to nose, one-leg stand, recitation of the alphabet, counting backward, etc.).

There may be factors that could have caused the observations and poor performance on the psychophysical tests, each having nothing to do with the consumption of alcohol. The observations and field tests must be scrutinized and screened to neutralize the evidence and prepare for either a favorable pre-trial resolution or creative and effective cross-examination at trial.

Some field sobriety tests are not scientifically validated to gauge impairment and may induce failure in sober people. The National Highway Traffic and Safety Administration of the United States Department of Transportation (NHTSA) recognizes only three field sobriety tests as reliable scientific indicia of intoxication. The Standardized Field Sobriety Test (SFST) battery consists of: (1) The Horizontal Gaze Nystagmus (HGN), (2) The Walk and Turn, and (3) The One Leg Stand. These three tests are regarded as reliable (validated) in evaluating alcohol impairment, provided they are properly administered and interpreted. If the tests are not administered in a prescribed standardized manner, the test results are rendered compromised.

I have been through the same detailed training that New Jersey Police receive in DWI Detection and Standardized Field Sobriety Testing. I am also a qualified DWI Detection and Field Sobriety Testing Instructor. I have personally administered field sobriety tests to sober and intoxicated people and am familiar with the detailed training manuals published by the Federal Government and used for police training. On this defense front, being intimately familiar with these tests is the only way to accurately assess a DWI case and effectively cross-examine the police officers who administered the tests.

I am a New Jersey DWI specialist. I do not handle wills, personal injury cases, matrimonial cases, real estate closings, bankruptcies, etc. I have handled thousands of DWI cases, including hundreds of DWI trials (from start to finish) in virtually every county in the State. I have received extensive training in DWI Detection and Standardized Field Sobriety Testing (both administering the tests and instructing in their administration). I also have training from the manufacturer of the Alcotest 7110, Dräger. You cannot assume that police claims are legally accurate or sufficient to establish guilt beyond a reasonable doubt. A successful challenge to a DWI case is possible through diligent, targeted, and effective defense advocacy.

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

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

No. DWI is an acronym for Driving While Intoxicated. DUI is an acronym for Driving Under the Influence. Both are interchangeable terms used to refer to the charge in New Jersey under N.J.S. 39:4-50.

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

N.J.S. 39:4-50 (the same law that relates to an alcohol-related DWI) makes it unlawful to “operate a motor vehicle while under the influence of [a] … narcotic, hallucinogenic or habit producing drug.” This includes illegal “street” drugs and may include prescribed medicine.

In order to convict, the State must usually prove generally: (1) the presence of drugs (which will often be in the form of blood or urine evidence) and (2) observations of drug intoxication often through a qualified police officer who has specialized Drug Recognition Expert (DRE) training.

A common mistake made by defense counsel is to equate a positive specimen result with guilt. Many drugs can be present in the blood and urine long after their effects are gone (some for days and weeks after ingestion). Further, without testimony from a DRE-trained police officer, the State’s case will be weakened. Even with DRE testimony, a successful challenge is possible through diligent, targeted, and effective advocacy.

Guilt can never be assumed in these cases, even if the evidence appears strong, and there is positive specimen evidence. Through careful review and the use of the proper outside experts, the drugged-driving case can be successfully defended.

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

There is simply no way of placing numerical odds of success in any case, including a DWI charge. Further, it is clear that New Jersey’s firm public policy stance against DWI makes the defense of the NJ DWI charge a unique challenge.

I believe that DWI defense is similar to the practice of medicine. The best chance for a successful result will come through a Doctor who specializes. A recent report from the British Journal of Cancer revealed, “breast cancer patients operated on ten years ago by specialists have done better than those treated by surgeons with fewer breast cancer patients.” If the practice of NJ DWI law is like medicine, you will increase your chances of success by hiring a lawyer who specializes in DWI defense.

You are likely overwhelmed with lawyer marketing materials and confused over how to locate a qualified lawyer. You should be aware that lawyers may not represent to consumers that they are specialists unless they are certified by the New Jersey Supreme Court or an American Bar Association-approved organization.

Finding the right attorney is to the benefit of both you and the attorney you choose. That is why the Supreme Court of New Jersey has directed the Board on Attorney Certification to administer the attorney certification program in an effort both to protect consumers from false advertising and to raise the level of competence of attorneys in this State. This program is designed to help you make an informed decision when seeking and selecting a lawyer.

The Board on Attorney Certification was established by the Supreme Court of New Jersey in 1980 for the purpose of helping consumers find attorneys who have a recognized level of competence in particular fields of law. Attorneys may be designated by the Supreme Court as “certified attorneys” if they: are able to demonstrate sufficient levels of experience, education, knowledge and skill in a specific area of law or practice; have passed a rigorous examination; and have been recognized by their peers as having sufficient skills and reputation in the designated specialty.

The Supreme Court, through recommendation by the Board, certifies attorneys in five areas: civil trial law, criminal trial law, matrimonial law, municipal court law, and workers’ compensation law.

An attorney must meet the following requirements to become certified:

* has been a member in good standing of the New Jersey Bar for at least five years;

* has taken a specific number of continuing legal education courses in the three years prior to filing an application;

* demonstrates substantial involvement in the preparation of litigated matters;

* demonstrates an unblemished reputation by submitting a list of attorneys and judges who will attest to the applicant’s character and ability; and

*passes a written examination covering various aspects of practice in the designated specialty

12. Can I plea-bargain a New Jersey DWI charge?

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

In some cases, a Prosecutor may ask the Court to dismiss a DWI charge where the State is convinced that they will not be able to prove the charge beyond a reasonable doubt. When a Prosecutor believes that he or she cannot convict, the Prosecutor is ethically duty-bound to dismiss the charge or reduce it to one that conforms to the evidence. I have defended many cases where the Prosecutor has conceded that the State could not prove the DWI charge beyond a reasonable doubt. In those cases, the DWI has either been dismissed or amended to a charge that conforms to the proofs (such as careless or reckless driving). Such a disposition is, however, distinguishable from a plea-bargain. Further, these resolutions require thorough, careful, and targeted work by defense counsel.

13. Will my case be decided by a jury?

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

14. What if my rights were not read?

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

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

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

An out of state conviction for a DWI that was “substantially similar” to NJ DWI law, will constitute a prior offense in New Jersey for sentencing purposes. It is possible to exclude the out of state conviction with proof that the out of state law was not similar to NJ law, or the conviction was based solely upon a BAC of less than .08%.

Sometimes, a prior conviction does not show up in a defendant’s driving history during the State’s investigation. This presents an extremely delicate situation that must be handled with caution. The State has the burden to prove each element of the offense against a defendant, including any prior offense.

A lawyer has an ethical duty of candor to the Court and Prosecutor. If asked directly by the Judge, a defendant who lies risks a charge of perjury or contempt of court. On the other hand, a defendant has an absolute constitutional right to remain silent, including at sentencing (to “take the fifth”). Also, a lawyer owes allegiance to his client of zealous representation, and a duty not to reveal privileged information. The lawyer, therefore, can assert the attorney-client privilege regarding knowledge of a prior offense, and may not waive the client’s constitutional rights. Through a careful balancing of the opposing duties and ethical advocacy, it is possible to neutralize the prior offense.

16. What if my driver’s license is in another state, and I am found guilty of DWI in New Jersey?

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

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

If you are convicted of driving during the period of suspension, the Court must: (1) fine you $500, (2) suspend your driving privileges for one to two years, and (3) order your imprisonment in the county jail for 10 to 90 days. In some cases, driving while suspended is a 4th-degree criminal offense (a so-called felony), with exposure of 18-months in prison. The driving while suspended charge (N.J.S. 39:3-40, or N.J.S. 2C:40-26), when the reason for the revocation is a DWI or Refusal conviction, presents a unique challenge. There are, in my experience, defense issues and angles whereby the jail term can be mitigated, or the charge itself can be defended or downgraded.

18. Is a New Jersey DWI conviction a crime?

No, a DWI in New Jersey is classified as a motor vehicle (traffic) violation, not a crime, felony, misdemeanor, or disorderly persons offense.

Greggory M. Marootian, Esq.
154 South Livingston Avenue
Suite 101
Livingston, NJ 07039
Cell: 201-404-8990
Office: 973-994-3732
Fax: 973-994-2239
Email: gmmesq@aol.com