Prosecution and Defense

DWI Overview & Law

The New Jersey DWI laws combat the perils of drunk driving. In general New Jersey DWI law prohibits the following courses of conduct:


1. The per se violation.

It is a violation to operate a motor vehicle in New Jersey with a blood alcohol concentration of .08% or more by the weight of alcohol in the defendant’s blood. When a DWI blows a .08% BAC then this is referred to as a per se violation. The violation is called a per se because the DWI driver is automatically convicted as long as the prosecutor can prove that the person also drove the vehicle. It doesn’t matter that the DWI driver shows that he has no outward effects of being drunk, or that the consumption of alcohol in no way affected the defendant’s ability to drive safely. If a DWI driver blows a .08% BAC, then he or she is guilty even if he drove perfectly. In summary, per se means that if your BAC is .08% then you are automatically guilty. Thus, it is imperative to file a motion to contest the stop, find errors in the BAC readings, and find fault in the field sobriety tests.

2. Operating while under the influence of intoxicating liquor.

A DWI .08% can also be convicted for being “under the influence of intoxicating liquor.” Basically, if a DWI blows below a .08% BAC, then the prosecutor may try to convict the DWI under observations of the police officer, and by the field sobriety tests. Basically, this section of the DWI statute is a fall back provision to enable the prosecutor to convict a DWI driver if the readings are below the per se limit of .08%.

Any given defendant who is an inexperienced drinker may have a blood alcohol concentration substantially below the prohibited .08% level and not yet be profoundly intoxicated. Such a DWI driver would not be guilty of the per se violation of the DWI statute.

On the other hand, an experienced drinker, may have a blood alcohol level substantially above the .08% level and yet not be under the influence of alcohol. Such a defendant would be guilty of the per se violation and not guilty of being under the influence.

As a result of the foregoing, the prosecutors will typically prosecute both the per se violation and the under the influence violation during the presentation of the States’ case the prosecutor’s strategy is that if the proofs fail one type of prohibited conduct, he may be successful on the other.


New Jersey law requires that every driver using the roadways in New Jersey to submit to a chemical breath test when requests. NJ law imposes harsh civil penalties, fines, motor vehicle surcharges, and a long suspension of driving privileges if a driver refuses to take a breath test.

The New Jersey courts have joined with the Legislature in implementing the implied consent statute, or forcing drivers to take a breath test. The New Jersey Supreme Court has interpreted the public policy of the implied consent statute to be more protective than punitive. Its primary purpose is not to punish the driver, but to protect the motoring public by removing the offending driver from the highways with reasonable dispatch.

The implementation of New Jersey’s public policy by the courts and the efforts by the police to enforce the implied consent law create numerous challenges for both the prosecutors and defense counsel who must handle refusal cases. Given the numerous potential sentencing enhancements associated with the statute, refusal cases are frequently hotly contested in court. Indeed, the act of refusing to submit to a breath test may be used by the court to infer guilt on the related drunken driving charge.

Yet, over and above these issues, there are other, more basic legal problems that must be confronted in every refusal case. Did the actions of the defendant actually constitute a refusal? Was the defendant legally required to take a breath test? Can a defendant who initially refuses change his or her mind and voluntarily submit to a breath test? Can an acquittal for refusal to submit to a chemical test be appealed by the State? These and many other topics are explored in the sections that follow.

Elements of the Refusal Offense-In General

In general, there are five elements in a refusal case that must be proven by the State by a preponderance of the evidence. These include;

  1. That the arresting police officer had probable cause to believe that the defendant operated a motor vehicle while under the influence of alcohol;
  2. An arrest of the defendant;
  3. A refusal by the defendant to submit to a breathalyzer test;
  4. That the request for the defendant to take the test was made by a police officer who had reasonable grounds to believe that defendant had been operated a motor vehicle in violation of the DWI laws; and
  5. The attempt to administer the breath test was conducted lawfully.

Each of these five elements requires a discussion and analysis.

1. Probable cause to Believe that the DWI Driver Operated While Under the Influence.

The police must have probable cause to arrest the driver for a DWI charge. The police officer can’t just pull over the vehicle, and go “fishing” for DWI drivers. A probable cause determination is based upon the arresting officers’ perceptions, training, experience, and consideration of the totality of the circumstances.

2. Arrest of the Defendant

The refusal charge also requires that the DWI driver be arrested. The arrest of the DWI driver must be supported by adequate probable cause.

3. Refusal to Submit to the Breath Test

Due to their circumstances, perceived legal problems and the general state of intoxication, many drunk driving defendants will engage in conduct which can constitute a refusal to submit to a breath test. The law is well settled that anything substantially short of an unqualified, unequivocal consent to a cop’s request for a breath test constitutes a refusal to do


A. Silence

When the arresting officer asks the defendant whether he or she will submit to a breath test, the defendant remains silent. This may be due to the defendant’s subjective, good faith belief that he or she has a right to remain silent. However, the defendant’s subjective intent is irrelevant in, determining whether the defendant’s responses or lack of responses constitute a refusal to, take the test. Silence by the defendant is sufficient evidence to constitute a refusal to submit to a breath test. This bright line rule, was adopted by the Appellate Division of Superior Court in State v. Sherwin, 236 N.J. Super. 510 (App. Div. 1989)

B. Insufficient Number of Breath Samples

The refusal statute mandates consent to the taking of samples, of a defendant’s breath. However, how many samples must a defendant provide. Normally, the police will require a minimum of two samples, in, order to be assured of accurate, consistent blood alcohol results. In the case State v. White, 253 N.J. Super. 490 (Law. Div. 1991), the court held that a DWI driver must provide at least two samples of their breath and the failure to do so constitutes a refusal.

C. Short Samples

A short sample occurs when the defendant either pretends to blow into the breathalyzer or the does not provide a sufficient amount of breath to fill the chamber. These so-called short samples will not result in a valid reading from the breathalyzer and are of no value. Thus, a short sample is no sample at all. For this reason, a short sample can not constitute sufficient evidence to satisfy the refusal element.

D. Delay in the Administration of the Breath Test

Defendants will sometimes seek to delay the administration of the breathalyzer test. Frequently, this is done in order to attempt to speak to an attorney or with some other person to obtain legal advice prior to taking the breath test. Defendants have no right to delay the administration of a breathalyzer test. Due to the evanescent nature of evidence of alcohol intoxication, it is vital that the police obtain the breath samples from the defendant without undue delay. Indeed, the samples, must be obtained within a reasonable period of time after either operation of a motor vehicle or arrest. Any delay initiated by the defendant may frustrate police efforts to obtain reliable evidence of the defendant’s blood alcohol concentration within a reasonable period of time. For these reasons, a delay by the DWI driver for any reason to take the breath test can constitute sufficient evidence to convict for refusal.

E. Conditional Refusals

A DWI driver may attempt to place “conditions” upon their consent to provide breath samples. In the typical case; the defendant will consent to take a breath test only after being permitted to cause the restroom or make a phone call. A DWI driver can;t attach any conditions to taking the breath test.

F. The Confusion Doctrine

The defendants who are requested to submit to the breath tests by the police sometimes become confused by the information they are provided by the police. As part of the arrest procedure, the police will often advise a drunken driving suspect of his or her Miranda rights. These include a warning that the defendant has the right to remain silent and to speak to an attorney before any questioning by the police. However, the warnings given to a defendant as to his or her obligation to submit to a breathalyzer test inform the defendant that there is no right to refuse to provide the police with a breath sample or to speak to an attorney before providing a breath sample to the police.

Can the contradictory and, confusing nature of these two advisements to a defendant cause such confusion in the defendant’s mind that he or she can be legally justified in refusing to take a breathalyzer test?

The New Jersey Supreme Court recognized that, as a practical matter, it is difficult to explain to a suspected intoxicated driver under arrest at the police station house the subtle legal distinctions that make it constitutionally permissible to extract a person’s blood or breath but not his or her words. The Supreme Court has even suggested changes to the language used to advise defendants of their obligations under the implied consent law that will eliminate some of the potential for confusion. See, State v. Leavitt, 107 N.J. 534 (1987)

Thus, while confusion is not a recognized defense to a refusal charge, there has been no bright line established by the Supreme Court which would prevent a defendant from raising this issue. A defendant who wishes to assert the “confusion doctrine” as a defense to a refusal charge will bear the burden of persuasion if he or she wishes to establish a confusion claim.

A DWI driver who cannot prove that he or she was confused by the warnings will be found to have refused to submit to a breath test.

G. Physical Incapacity

A DWI driver can argue at court that they were physically incapable of giving a breath test. This type of strategy can work if the DWI driver has breathing problems such as asthma, or if they were shaken up by the accident. Moreover, a driver’s incapacity to take the breath test may be due to a high level of intoxication, illness, or fatigue.

Based on the realities of the DWI case, that a injury to the DWI driver’s mouth, face, chest or lungs that would reasonable prevent the driver from providing a breath sample would probably excuse a refusal.


The police officer who requests that the DWI take a breath test must also have “reasonable grounds” to believe that the driver was also drunk. Basically, the police officer must have had probable cause to stop the vehicle to conduct an inquiry for a DWI. Remember, a police officer can’t just pull over a vehicle and request that the driver take a breath test. The vehicle must be stopped for committing some type of motor vehicle violation that would satisfy the probable cause standard. The car must be speeding, weaving, or a tail-light must be out. Any random stops of vehicles in most municipal courts do not satisfy the probable cause standard.


Basically, the police have to read DMV Standard Statement 36 to the DWI driver. If they don’t this may be a great loophole for a DWI driver, in an “open minded” court.



This is a very tricky doctrine. Basically, in a nutshell if there is a ten year gap between DWI convictions, then the DWI driver is sentenced more leniently.

N.J.S.A. 39:4-50(a)(3) provides a certain measure of relief to multiple offenders who go more than 10 years between offenses. If a second offense occurs more than 10 years after a first offense, the sentencing court is required to treat the second conviction as a first offense for sentencing purposes. If a defendant commits a third offense more than ten years after the second offense, the court is required to treat the third offense as a second offense for sentencing purposes. The relevant date for all of these sentencing decisions is the date of offense as opposed to the date of conviction.


There are two possible effects that an out of-state DWI or a drug conviction can have on a New Jersey resident driver. First, a New Jersey resident can expect the imposition of an administrative license suspension and costly surcharges from New Jersey Division of Motor Vehicles once the out-of-state conviction has been reported.

In addition, should the New Jersey resident driver be charged and convicted of a subsequent offense in New Jersey during the ten-year period following the out-of-state conviction, the prior conviction will subject the driver to enhanced penalties in New Jersey.

Administrative Sanctions

When a New Jersey resident is charged and convicted of a offense in a state outside of New Jersey then, a record of the conviction usually be reported to the Director of the Motor Vehicles Services. This is especially likely if the New Jersey resident presented his New Jersey driver’s license to the police in connection with the out-of state violation.

A report of these convictions will be made to the Division of Motor Vehicle Services by operation of law through the Interstate Driver’s License Compact. If the conviction is reported to the New Jersey Division of Motor Vehicle Services, the Director will then take administrative steps to suspend the driving privileges of the resident driver. The length of the suspension will be in accordance with the minimum license suspension periods available under N.J.S.A. 39:4-50, depending upon the driver’s history of prior offenses.

A reported out-of state DWI conviction will also trigger the imposition of surcharges by the MVS. The surcharge will be at the rate of $1,000 per year for three years.


The law is now clear that a prior out-of-state conviction enhances a subsequent conviction, that occurs in New Jersey. According to N.J.S.A. 39:4-50(a)(3), a DWI in any of state that is similar to the NJ DWI law will constitute a prior conviction in New Jersey for sentencing purposes.

For the immediate future, a New Jersey defendant may be able to avoid the sentence enhancement consequences of an out-of-state DWI conviction only under certain circumstances. The DWI driver may be able to prove that the out of state conviction was based on evidence that was less that the standard of proof as used in New Jersey. Basically, the DWI driver must prove that if the out of state court used the same standard of proof as New Jersey did, then he would not have been convicted.

As a practical matter, this means that the if defendant’s prior conviction was based upon a BAC of .08% or .09% in a State that makes the DWI level .08%, then the New Jersey driver can argue that this out of state conviction should not count as a prior conviction.

The statute N.J.S.A. 39:4-50 makes it unlawful to “operate a motor vehicle while under the influence of intoxicating liquor … or .. with a blood alcohol concentration of .08% or more by weight of [blood] alcohol.” There are two prongs to New Jersey’s Drunk Driving Law (i.e. a Defendant can be convicted in one of two ways); (a) operating a motor vehicle while “under the influence of intoxicating liquor”, or (b) operating a motor vehicle with a “blood alcohol concentration of .10% or more.” The term “Under The Influence” is broadly defined as a driver who has consumed alcohol “to the extent that his physical or mental faculties are deleteriously affected.” State v. Emery, 27 NJ. 348 (1958). Currently, a person who operates a motor vehicle with a BAC of .08% or more is guilty, regardless of how the alcohol may have affected him personally. The most common form of BAC evidence is a breathalyzer reading which (mathematically) converts breath alcohol into a blood alcohol reading.


There are no conditional driver licenses after a person is convicted of a DWI offense. The revocation of your driver’s license in New Jersey is mandatory for the prescribed period(s). There are currently no exceptions in New Jersey Law which would provide for a conditional driver’s license for work or otherwise.