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 a DWI offense does New Jersey have any temporary or work license programs?
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 Asbury 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. 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.
4. What are the cues that police officers search for “on the hunt” for drunk drivers ?
The following is a list of symptoms or cues that the police search for when hunting for DWI drivers. The list is based upon research conducted by the National Highway Traffic Administration:
Speeding is not a symptom of DWI. On the contrary, because of the quicker judgment and reflexes that are required to speed, it can prove that the driver was sober.
5. If I am stopped by a police officer and if he asks me if I have been drinking, how should I respond?
You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is an advisable response. On the other hand, saying that you had one or two beers is not incriminating. It is not sufficient to cause intoxication and it may explain the odor of alcohol on the breath.
6. Do I have a right to an attorney when I am stopped by a police officer, and if I am asked to take a field sobriety test(s)?
In New Jersey there is no right to speak to an attorney until after you have submitted to a blood or breath testing at the police station, or if you have refused to do so.
7. What is the police officer looking for during the initial detention of the DWI defendant?
The traditional symptoms of intoxication that are taught at the police academies are:
8. What should I do if I am asked to take field sobriety tests?
There are a wide range of field sobriety tests (FST’s). These tests include heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most police officers will use a set battery of three to five such tests.
Unlike the breath test, where a refusal to submit may have serious consequences, you are not legally required to take any FST’s. There is no possible charge such as refusal to take the FST’s. The cold hard reality is that the police officers have usually made up their minds to arrest you when they give you the FST’s. These tests are simply designed to give the prosecutor additional evidence that he will use to try to convict you. These FST tests are designed so that a DWI defendant will fail the. Thus, if you refuse to take these tests then the prosecutor will have less evidence to try to convict you.
9. Should I agree to take a breathalyzer test? What are the legal ramifications happens if I don’t?
There are three severe consequences if you refuse to submit to a breath or blood test. First, your driver’s license will be suspended for 7 months to 1 year in addition to the suspension for DWI. If this is a second offense, the suspension is for 2 years. The fact of refusal can also be introduced into evidence at trial as evidence of “consciousness of guilt.” Of course, the defense is free to raise other reasons for the refusal, such as the fear of needles or the traditional offense will be charged.
10. Why did the police officer make me follow a penlight with my eyes to the left and to the right?
This is the “horizontal gaze nystagmus” test and it is a relatively recent development in DWI investigation. The police officer attempts to estimate the angle at which the eye begins to jerk . The term (“nystagmus” is medical jargon for a distinctive eye oscillation, If this occurs sooner than 45 degrees, then it theoretically indicates a blood-alcohol concentration more than .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has conclusively been proven to be subject to a number of different problems. The major flaw in this tests is that a non-medically trained police officer simply often does not have the ability to recognize nystagmus and estimate the angle of onset. Because of this flaw, and the fact that this test is not accepted by the medical community, it is not admissible in New Jersey.
11. The police officer never gave me a Miranda warnings. Can I get my DWI case dismissed based on this legal technicality?
No. The police officer is supposed to provide a Miranda warnings after he arrests you. Often, however the police officer(s) fail to do so. The only consequence is that the prosecution can’t use any of your answers as evidence. to any questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state’s “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your driver’s license.
12. Can I represent myself at my own DWI trial? What can a lawyer do for me?
You can represent yourself in your own DWI case. However, this is a very stupid idea. Drunk driving is a very complex field of the law and the penalties are getting harsher each year. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing issues in every DWI case.
What can a lawyer do? An experienced DWI lawyer can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
13. What is a sentencing “enhancement”?
New Jersey law increases the punishment in drunk driving cases if certain facts exist. The most common of these enhancements is an earlier conviction for the same or a similar offense within ten years of the current offense. Other commonly DWI sentencing enhancements include:
14. What is “mouth alcohol”?
“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test the the BAC readings will be inaccurate and read falsely high. This result is caused the breath machine assumes that the breath is from the lungs; for complex physiological reasons, it’s internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol that is breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
15. What are the strongest defenses in a DWI case?
The potential defenses in any given drunk driving case there almost limitless because of the complexities of DWI law. The majority of the defenses can be broken down into the following areas:
16. Will a defendant be sentenced to jail if he is convicted of a DWI?
On a first time DWI offense most defendants will not be sentenced to any jail time. If the defendant has a high BAC reading, then the some judges may impose some community service, and he may also impose a stiffer fine.
On a second or later DWI offense then the chances of being receiving a jail term increase significantly. However, an experienced lawyer can usually find a way to keep a DWI defendant out of jail for a second or the third offense. In most cases the judge will not sentence the defendant to a jail term for a DWI second offense. The court will order the defendant to comes to the Municipal Court on numerous days and watch the court proceedings. Each day the defendant sits in at court will constitute as one day in jail.
For a third time DWI offense the defendant must receive a mandatory 6 month jail term. There is a 90-day stip for this six-month term. In simpler terms, the DWI defendant must serve 90 days in the County Jail. However, 90 days of the jail sentence can be served by performing community service, or by enrolling into a rehab program.
17. My BAC readings were 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%.
18. 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.
19. What are the sentences for a DWI in New Jersey?
For the first offense DWI the fines range between $250 and $400. A defendant must attend Intoxicated Driver Resource enter (IDRC) for 12 to 48 hours. A driver must pay $100 for the IDRC program. A defendant must also pay a $50 Violent Crimes Compensation Board (VCCB) penalty, and a $75 Safe Neighborhood Fund Assessment. A driver can be sentenced to up to 30 days in jail. A defendant will also lose his driver’s license from 7 to 12 months. Finally, for a first DWI offense the DWI defendant must also install an interlock device if his BAC was 0.15% or higher. The court has the discretion to to require the ignition interlock device for a period for 6 months to 1 year following the restoration of the defendant’s driver’s license.
If a defendant is able to have the DWI charge dropped to a tier one DWI, then he will only lose his driver’s license for 3 months. A defendant must have a BAC less than .10% in order to receive the shorter driver’s license suspension.
For a second DWI offense the fines range from $500 to $1,000. A defendant must perform community service for a period of 30 days. A defendant must attend the IRDC for 12 to 48 hours. A defendant must pay $100 to attend the IRDC program. A driver must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A defendant can be sentenced to a jail term for up to 90 days. Finally, a defendant will lose his driver’s license for a mandatory 2 years. After the suspension is over the defendant will also be required to install an ignition interlock device for 1 to 3 years.
For a third or a subsequent DWI offense a defendant will be fined $1,000. The defendant must also attend the IDRC for 12 to 48 hours. A defendant must pay $100 for the IDRC program. A defendant must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A defendant will be sentenced to jail for a term of 180 days. However, 90 days of the jail sentence can be served performing community service. A defendant will also lose his driving privileges in New Jersey for 10 years. After the suspension is over, the defendant will then have to install an ignition interlock device for 1 to 3 years.
20. What happens if a DWI defendant is stopped in a “School Zone?”
If a DWI defendant is arrested in a “School Zone” then basically the fines and the length of the driver’s license suspension are doubled. This is a strict liability offense. The DWI stop must occur within 1,000 feet of the “school zone.” For a first time offense, the license suspension is 1 to 2 years. For a second time offense, the license suspension is 2 to 4 years. The jail terms and the fines are also doubled. The “school zone” provisions are often used as leverage for the prosecutor to obtain a conviction. In many cases the prosecutor may drop the “school zone” charge in return for a straight plea to the DWI charge. A defendant can’t use the defense that since school was closed then this area can’t be considered to be a “school zone.” A defendant can be charged for this offense even if he is stopped in the middle of the night, and even if there is no school in session.
21. What is the “Ten Year Rule”?
The “Ten Year Rule” basically means that a ten-year-old DWI conviction cannot count as a prior conviction for DWI sentencing purposes. The “Ten Year Rule” does not apply in a third time offender case. I predict that the “Ten Year Rule” will be abolished shortly. The basic premise of this rule is that a DWI defendant should not receive a sentencing enhancement if his prior DWI conviction is ten years old or more. The “Ten Year Rule” can get very complicated. However, in many cases this rule can save a DWI defendant from being sentenced as a second offender.
22. Does a DWI conviction in another State besides New Jersey count as a “prior conviction” for sentencing purposes?
In many cases a DWI defendant may have a prior DWI conviction(s) in another state. A DWI conviction in another state also counts as a prior conviction for New Jersey DWI sentencing purposes. However, an experienced DWI attorney can always argue that the constitutional guaranties of the prior sister state DWI conviction is illegal. Therefore, a crafty lawyer can always make arguments that the out of state DWI conviction should not count as a prior conviction.
Before a DWI defendant is sentenced the Municipal Court judge must run the driver’s abstract, and then review it for any prior DWI convictions. In many cases a DWI defendant’s prior out-of-state conviction(s) will not appear up on the abstract. A DWI defendant has an obligation to be truthful and to inform the Municipal Court of his prior out-of-state DWI convictions. Many sneaky DWI defendants lie to the Municipal Court judge, and they refuse to disclose their prior out of state DWI convictions. Sometimes, they get away with these lies and sometimes they are busted. If the defendant is busted then he could be ultimately indicted for perjury charges.
23. What are the legal ramifications if a New Jersey resident obtains a DWI conviction in another State?
If a New Jersey citizen obtains a DWI conviction in another state then he eventually he will also be suspended in New Jersey. Once the out-of-state DWI conviction is finalized, then the sister state will eventually report it to New Jersey MVC. Thereafter, the NJ MVC will file an administrative case to request a suspension of the defendant’s New Jersey driver’s license. The New Jersey defendant will also receive MVC surcharges, and he also will be required to attend IDRC classes.
24. Are the DWI laws different if a defendant is convicted for “underage DWI.”?
The DWI laws are much stricter for an “underage DWI” case An underage drinker cannot have even a trace of alcohol in their system. All the prosecution must prove is that the defendant had a blood alcohol concentration of at least .01% but less than .08%. An underage defendant who is convicted of this violation is also required to perform between 15 and 30 days of community service. The underage defendant is required to lose his driver’s license for 30 to 90 days. Finally, the underage defendant must also attend the IRDC. In summary, an underage defendant can be convicted underage DWI even if he consume just one one alcoholic beverage. A minor is not legally permitted to have even a trace of alcohol in his system.
25. Can a defendant be convicted for both a DWI charge and for a refusal to submit to a breath test?
In many cases the defendant will be charged with both a DWI and a refusal charge. If a defendant is convicted of both charges, then the Municipal Court judge has no alternative but to impose consecutive sentences on both convictions. Under New Jersey law these charges are considered to be separate offenses, and they do not merge at the time of sentencing.
In simpler terms the penalties and the suspensions will be doubled. In many situations an experienced attorney will be able to have one of these charges, either the DWI or Refusal conviction dropped. However, if the defendant forces the court to have a trial, and if the BAC readings are high, then a Municipal Court almost always imposes two consecutive sentences. Consequently, the defendant will be sentenced 7 months for the DWI, and 7 months for the refusal charge. The total aggregate sentence will be a 14-month license suspension. In summary, a defendant faces a lengthy driver’s license suspension, double fines, and double surcharges if he has a trial and if he is convicted of both charges. I have never seen a case wherein a defendant has beaten both the DWI charge and the refusal charge in one trial.
26. How can a DWI defendant avoid jail time if he is convicted?
A Municipal Court judge in most cases does not want to sentence a DWI defendant to jail if he is convicted. In many counties the local jails have all types of community service programs that can be served in lieu of jail terms. In Northern Jersey, the counties of Union and Essex have SLAP programs. These programs permit the driver to serve his time by doing community service, instead of jail time.
In Ocean and Somerset Counties a convicted DWI driver can serve his time on the weekends, and then be released during the week. In Middlesex County the county jail will permit the defendant to be released during the day and then go to work. However, at night the driver must return to the jail. In Monmouth County the county jail has a wristlet program. The convicted DWI defendant will have to wear a wristlet monitoring bracelet. The defendant will be subject to home confinement. During the day, the driver has to go the county jail and perform community service. In Middlesex County a convicted DWI defendant can serve his time by performing community service. The driver will have to make this application to the court. If the driver is accepted, then he will have to report to the Middlesex County Workhouse on weekends for work duty.
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.
27. What are the surcharges for a driver if he is convicted of DWI?
A ddefendant will receive a $1,000 a year surcharge for three years if he is convicted of a DWI. A driver can pay these surcharges at the monthly rate of $83 per month for 36 months.
28. Can a court issue a convicted DWI defendant a temporary license only to be used for work?
No. There are no conditional licenses in New Jersey. A conditional work license has never existed in New Jersey and it never will.
29. What if the police officer does not appear for trial, can I win the case by default?
In most cases, the court will adjourn the DWI case if the police officer does not show up for a DWI trial. A good defense lawyer will then ask the court to make the next court session as “try or dismiss.” This means that at the next court date the case will be dismissed if the police officer does not appear.
30. What are the odds of a person “beating” a DWI charge in New Jersey?
The plain truth is that “beating” a DWI charge is extremely difficult. I have been in practice since 1991, and each and every year more DWI defenses are restricted, and more legal loopholes are closed. There are a tremendous amount of politics that are involved in all DWI cases. Moreover, there is a tremendous amount of pressure on the Municipal Courts to convict DWI defendants. A DWI defendant has all of the constitutional guaranties of having a trial and of due process. However, there are no jury trials in DWI cases this factor translates into a much lower percentage of winning DWI cases.
The new breath test machine is called the Alcotest 7110, and it is now used in all DWI cases. This new breath machine is essentially the “Terminator” of breath machines. A police officer only has to turn the machine on and advise the DWI driver to blow into the machine. The police officer also does not have to follow the 15 step checklist to conduct the breath tests. In summary, the Alcotest 7110 has destroyed more than half of the available DWI defenses. In my opinion the major issue in most DWI cases is only going to focus on the defendant’s sentence. It is getting harder and harder to beat DWI cases. The new Alcotest 7110 machine has drastically reduced a DWI defendant’s chances to beat a DWI charge.
31. 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.
32. 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.
This FAQ article contains some information obtained from Lawrence Taylor, Esq. and from his website DUICentral.com. The following material is reproduced with the permission of its author, California DUI attorney Lawrence Taylor. www.duicentral.com.