1. If I am convicted of a DWI will I receive any points?
No, if you are convicted for a DWI or a refusal then you will not
receive any points from the DMV. However, there are tremendous collateral consequences if you are convicted for a DWI. You will have to pay thousands of dollars of surcharges. For a first time DWI or refusal you have to pay $1,000 of surcharges per year for three years. Moreover, you will be assessed 9 insurance points. The insurance companies now use both DMV points and insurance points to assess whether to give you a policy and what to charge you. In many cases if you are convicted of a DWI, then your insurance company will drop you.
2. If I am convicted for DWI can I still obtain a temporary work license?
The answer unfortunately in New Jersey is a clear and unequivocal no! Thirty other states have temporary or work license for a defendant if he is convicted for DWI. However, regretfully New Jersey does not provide for any type of application for a defendant to apply for a temporary/restricted or sunset driver’s license. Instead, if a defendant is found guilty of a DWI or a Refusal charge, then he must immediately turn in his diver’s license to the court. If the defendant has an out-of-state driver’s license, then the court has no legal authority to order you to turn in your out-of-state driver’s license. However, the out-of-state driver can no longer legally drive in New Jersey even though his out-of-state license is still valid.
Once you have lost your license in the state of New Jersey you simply can’t drive at all. There are no loopholes or exceptions to this rule. Given the fact that New Jersey is the most crowded state in the United States, if temporary licenses were issued, then sooner or later there would be a disaster and another driver or pedestrian would be killed by the DWI driver with the temporary driver’s license. This disaster would of course be on the cover of the Star Ledger and Albury Park Press. There has been a significant amount of news about the New Jersey Legislature possibly enacting temporary licences. However, in my professional opinion temporary driver licences will never be enacted in New Jersey. The DWI laws are getting harder each and every year. Therefore, enacting work licenses would go “against the grain” and it would actually lessen the deterrence of the DWI laws. Many people would be less worried about being busted for DWI, because they would figure even if I get convicted I could always get a work driver’s license. So what is the big deal if I am stopped for DWI? This is not the message that the local Police Departments want to project to the public. Thus, restrict work license will never become reality in New Jersey.
3. If I have out-of-state driver’s license and if I am convicted for a DWI in New Jersey, will I still have to pay the outrageous DMV surcharges?
Unfortunately, you will still have to pay for the surcharges only if you live in New Jersey. If you don’t live in New Jersey then you won’t have to pay the surcharges. However, if you have a PA driver’s license and if you live in New Jersey then you will still have to pay the surcharges. This is a tricky question and the answer is debatable. However, I recently spoke to an executive who was in charge of imposing surcharge for the MVC and this is the answer she gave me.
4. If I am convicted of DWI or a refusal can I still have this mark expunged from my record.
In New Jersey you do not have to expunge a DWI conviction. In the majority of the states a DWI is a criminal charge, and if you are convicted then you will have a criminal conviction. However, in New Jersey a DWI is only considered to be a motor vehicle charge. In fact the NJ expungement statute specifically excludes the expunging motor vehicle violations. There is a “ying and a yang” to this information. In New Jersey it is tremendously difficult to beat a DWI because you don’t have a legal right to a jury. Your odds of beating a DWI without a jury are small. However, in most other states you do have the legal right to have a jury in a DWI case. However, if you lose then you will have a criminal record. Good luck getting a job with a criminal record these days.
5. Why do I have to hire a lawyer. Can’t I just talk to the prosecutor and work out a plea bargain for my DWI case?
Unfortunately, this plan simply won’t work. The Attorney General has issued directives to all of the Municipal Courts and the prosecutors that bans all plea bargaining in DWI cases. Therefore, it is critical for you to hire an experienced DWI lawyer and to raise your best defenses to you DWI case. Your lawyer can explore issues such as a lack of probable cause to stop your car, inaccurate BAC results, errors in the Alcotest process, the failure of the police to observe the defendant for 20 minutes before taking the Alcotest, etc. There are many potential defenses that can be raised. You won’t be able to point out weaknesses in the prosecutor’s case unless you hire a lawyer with a strong background in DWI cases. If you are able to build a decent defense then you may be able to convince the prosecutor to exercise his prosecutorial discretion. Thus, the prosecutor can agree to reduce a tier two DWI to only a tier one DWI. A prosecutor can use his discretion to allow the defendant to plead out to a DWI and to also drop the refusal. If you build a very strong DWI defense then in some rare cases the prosecutor can even use his discretion and even drop the DWI, and permit the defendant to plead out to a reckless driving, with a 90-day license suspension.
In short, on a technical level there is no plea bargaining in a DWI case. However, if you build a strong DWI defense, then the prosecutor can use his prosecutorial discretion and permit the defendant to obtain an alternative disposition. A DWI case can be a complicated game. You simply can’t play it yourself.
6. My BAC reading was below .08% and I also refused to submit to a breath test. Can the prosecutor still convict me for a DWI even without having this evidence?
Yes, you can still be convicted even if your BAC level is below .08%. This is not very common but it does occur. A DWI charge is a per se violation. This means that if the prosecutor proves that your BAC level is .08% or greater than you are automatically guilty of a DWI. However, there are also the field tests, the officer’s observations, and other observation evidence that can be used to convict you even if your BAC was below .08%
The prosecutor can prove that you were guilty of a DWI if you failed the field sobriety tests. The officer’s observations can also convict you. Observations such as fumbling documents or the smell of alcohol on your breath can be very damaging evidence as well. If you had an open container of beer or alcohol in your vehicle this could be critical evidence in your case. Based on the totality of reviewing all of this evidence the prosecutor can still convict a defendant even if his BAC levels were below the threshold level of .08%.
7. If I was charged with both a refusal and a DWI, when I go to court won’t the prosecutor just dismiss one of these charges?
Most likely not. The New Jersey Attorney General Guidelines clearly provide that a municipal prosecutor should not permit a defendant to simply plead guilty to a DWI, and then dismiss the refusal case. For any DWI case there is no sympathy or giving breaks to a defendant. If you are charged with a DWI you might as well go to court and tell the judge your name is “Satan.” The prosecutor will want to “run up the score” and convict you for both the DWI and for refusal. If you are convicted for both a DWI and for a refusal then you will receive consecutive sentences. This means that you will first have to serve your DWI sentence, and then you will have to serve your refusal sentence. Nonetheless, if you hire a lawyer and if he builds a strong case for you, then you may be able to convince the court to run both the DWI and the refusal sentences on a concurrent basis. This means that you will be able serve both the sentences at the same time. Consequently, you will be able to get back on the road, and have your driver’s license reinstated in half of the time.