Written by attorney Theodore Sliwinski

NJ DWI FAQ's Part Four

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.

27. What are the surcharges for a driver if he is convicted of DWI?

A deefendant 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. If temporary licenses were issued, then this would dramatically lessen the deterrence impact 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.

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 The following material is reproduced with the permission of its author, California DUI attorney Lawrence Taylor.

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