DWI or DUI? (201) 646-1100
"Drunk driving," "driving while intoxicated," "driving while impaired," "DWI," "driving under the influence," and "DUI," are distinctions without a difference in New Jersey. Any type of impaired driving be it alcohol or drugs (legal or illegal) is charged under N.J.S.A. 39:4-50 (or under N.J.S.A. 39:4-50.2 or N.J.S.A. 39:4-50.4a for breath test refusal). Since it is a traffic violation it can never be expunged from your driver's abstract (record).
Is DWI a crime in NJ?
DWI and refusals are traffic offenses and thus are prosecuted in municipal courts. You have no right to a jury. Unless you were in an accident which resulted in death or bodily injury to another or you are charged with driving on the suspended list for the 2nd time for a DWI violation or for driving on the suspended and you are suspended for a 2nd or 3rd DWI conviction - in which case you will be charged with a felony offense. Felonies are handled exclusively in the Superior Court - in which you have a right to 12 person Jury and P.T.I. (Pre Trial Intervention - first time offender program allowing for the dismissal of the charges after completion of probation). There are no administrative proceedings concerning DWI and refusals tickets in New Jersey. However where you are charged with a felony - the Motor Vehicles Commission will commence administrative proceedings to suspend driving privileges before a conviction is had in the Superior Court. However, for violation under 39:4-50 and 40:50.2 there is no license suspension unless there is a final conviction.
The state's legislature has made it illegal to plea bargain a traffic ticket DWI yet legal to plea bargain a felony assault / death by auto. You can be convicted based upon an Alcotest reading alone, blood test reading alone; field sobriety tests alone or a combination of both. Drunk driving and refusal is not deemed a crime in New Jersey (unless committed on federal property in which case you will be prosecuted in federal court). As such a New Jersey DWI will not appear on a CCH (criminal rap sheet), it however will appear on a New Jersey Driver’s Abstract. A felony assault by auto or death by auto or driving of the suspended felony will appear on a criminal record. DWI and Refusals in New Jersey are not expugnable. However, assault by auto and death by auto are expungebale for good cause shown after 5 years or after 10 years or completion of Drug Court.
In New Jersey, the prosecution can prove a DWI by Standardized Field Sobriety Tests; Alcotest Breath Test Reading - obtained by informed consent (meaning that you were advised of your right to refuse the test); A Blood Test (obtained by a warrant or informed consent); an officer's opinion that- "you looked drunk" based upon such things as your speech, affect, odor, ability to walk and stand etc. Or a combination of all of the above. It is illegal for a prosecutor in a New Jersey Municipal Court to use extrapolation evidence - i.e. your BAC at the time of the Alcotest/Blood test was below the limit, but at the time you were actually driving it was likely higher. However, a prosecutor in a felony is allowed to present such extrapolation evidence through a qualified expert such as a toxicologist.
In Federal Court in New Jersey, Alcotest results have been deemed admissible despite the fact that (to this attorney's knowledge) the machine has never been deemed scientifically reliable in any Federal Court. However, in Federal Court, Field Sobriety Tests, with the exception of the HGN (horizontal gaze nystagmus) test, have been deemed inadmissible at trial since they do not meet the Frye / Kumho / Daubert test for scientific reliability; however the agent/ranger's generalized opinion that "you looked drunk," is admissible.
Under the new law (2019), first offenders under 0.15 don't have to wait months to get their license restored. They can visit the Motor Vehicle Commission immediately after their conviction and begin the process of getting their license restored.
The MVC maintains a list of authorized ignition interlock vendors and service centers that are certified to install them. The driver leases the device from the vendor for about $75 a month and also pays for installation. That generally runs about $100 but can be as high as $400, depending on the make of the car.
What are the penalties for a New Jersey State DWI (effective December 2019)?
(1st offense with .08 or .09 or no reading) 90 days suspension or up until interlock device installed - minimum interlock period 90-days;
(1st Offense with .10 to .15) 7 months to 12 month suspension or up until interlock device installed-minimum interlock device 7 months;
(Refusing to Provide a Breath Sample) (39:4-50.4a) 90 day suspension, Installation of interlock during the 90 day suspension and for 6 months to 12 months following the suspension.
Thus- in a .08 to .15, or refusal situation, if found guilty you will be suspended, you will need to immediately install an interlock device, go the MVC with proof of installation and your privileges to drive will be restored, you will be issued a new license which will state "interlock" on the face of the driver's license.
(1st Offense with .15 or higher) 4 to 6 month suspension and then installation of the interlock for 9 to 15 months after 4-6 month suspension.
(2nd offense) - 1 to 2 year suspension -interlock thereafter for 2 to 4 years.
(3rd or subsequent offense) 8 year loss of license- interlock thereafter for 2 to 4 years.
Courts will treat a prior offense in any other state as a prior offense requiring 2nd offense status if the prior offense was within 10 years of the current offense. A prior refusal may not elevate a DWI offense to 2nd offense status
If you are charged with a DWI and Refusal, notwithstanding certain circumstances, it is illegal for the prosecution to dismiss the refusal charge - thus you are required to plead guilty to both - thus double the fines (suspension are usually run concurrent but can be run consecutive if you loose at trial)
Jail - 2 days minimum for second offense (of which 2 days can be served at the IDRC) up to 180 days jail (for third offense, of which 90 days can be done in an inpatient program)
Court imposed assessments up to approximately $2,400
Administrative assessments up to approximately $5,500
Increase in insurance or carrier can drop you
Intoxicated Driver Resource Center (IDRC) for up to 48 hours - however IDRC can refer you out for treatment as condition precedent to you regaining your driving privileges.
Insurance Surcharge - Paid to Motor Vehicle Commission
The surcharge is typically $3,000 payable in three annual installments of $1,000 each or 36 monthly installments of $84 each. However if 3 events including convictions under N.J.S. 39:4-50 or N.J.S. 39:4-50.4a occur within 3 years of each other, the surcharge for the third and event will increase to $4,500.
Revocation of registration privileges;
Alcohol ignition interlock in every vehicle you own, lease, or customarily operate - At your expense (may be up to approx $1,000 per year per car).
First DUI offense: Installation of interlock device for 3 months up to 15 months upon restoration (judge's discretion); BAC 0.15% or greater requires mandatory installation of ignition interlock device during license suspension and for 6 months to 1 year following restoration
Second DUI offense: Mandatory installation of interlock device during license suspension and for 1 to 2 years following restoration.
Third DUI offense: Mandatory installation of interlock device during license suspension and for 2 to 4 years following restoration.
Even out-of-state drivers with out-of-state vehicles must show NJ-MVC proof that the interlock device was/is installed on the car(s) if they request that their NJ driving privileges be restored after the suspension period is over. (It should be noted that certain states may have restrictions on altering or adding equipment to car ignitions, and therefore the installation or use of the interlock may violate the law in ones home state).
There is no "standard" make or model of interlock required by the state of NJ at the present time. It is also not clear at the present time what BAC limit will trigger the interlock device. However based upon conversations with colleagues it is believed to be .05% BAC. Essentially the interlock device requires a motorist to blow into the device, assuming the motorist blows a BAC under the limit set by the device, the car will start. If over the set limit of the device, the car will not start and will not let the motorist attempt to blow for another hour. Once the car starts, you will be required to blow again every 15-minutes. If while driving you blow over the BAC limit set in the device, the device will prompt you to stop the car. If the car is not stopped within the set time period, the device will activate the car's horn and exterior lights to blink off and on - to alert other motorists and the police - the car is not supposed to automatically shut off.
The interlock device must be calibrated every 30-to-60 days depending upon the manufacturer. At this time the technician will download all of the stored blows and violations. It is unclear what the technician is supposed to do with the data, say for example a motorist has attempted to start the car and was over the BAC limit in the car or went over the set BAC while the car was moving. Some companies allow you a set number of "violation points" which you are allowed every month. This feature was designed for states that designate DWI a crime, thus resulting in a probationary sentence. In those states, any interlock violation is required to be reported to the probation department. Motorists should be aware that since the interlock devices are "leased" many of them are equipped with GPS tracking devices. Many manufactures claim that this is a "bonus feature" which "Doubles as theft prevention for vehicle." However, given that this device is supposed to check for BAC, coupled with the fact that a motorist will be required to take one eyes off the road and at least one hand off the wheel - to provide a sample, it is this author's belief that this device and the data stored therein could be used against a motorist in the event of an accident or in the event that the motorist attempts to sue the interlock manufacturer for failing to stop them from drinking and driving or for causing them to have an accident because they were distracted.
What if I had something to drink, can my passenger blow for me? Not really - most of the devices installed in NJ simultaneously capture a picture of you as well as a finger print in order to memorialize who provided the sample.
Forfeiture of motor vehicles registrations - registered in your name;
Suspension of your CDL license; (12 mo first offense - life for second offense);
Suspension of your airplane pilot license;
Assault by auto and death by auto can carry up to 10 years in prison of which you must serve 85% before becoming eligible for parole.
Other collateral consequences:
New Jersey does not have a conditional license program (to drive for work purposes only)
Loss of your professional license (i.e. law, medical, nursing, DEA);
Deportation / Removal / Inadmissibility;
You may be prevented from entering certain countries e.g. Canada; Upon entering Canada they ask everyone (drivers, passengers, bus passengers and people who have no intention on driving in Canada) if they have ever been "convicted of a crime?" As stated above, DWI is NOT a crime in NJ, however in Canada an above .08 is a crime, so therefore if the Canadian boarder crossing people see that you have a NJ DWI they MAY not let you in. As stated above a NJ DWI does not show up on a criminal case history (unless you were charged with a death / assault by auto). According to this website ( http://www.ezbordercrossing.com/the-inspection-experience/prior-criminal-offenses/crossing-canadian-border-with-a-dui/#.U9p8amd0w5s ). Former president George W. Bush, had to apply for a special permit to enter Canada due to his prior DWI!
Use of DWI conviction as bad character evidence (i.e. to revoke gun permit; ABC license; Professional License, during a divorce / child custody case);
Tort bar - N.J.S.A. § 39:6A-4.5(b), states that a convicted drunk driver “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.”
Thus, if you plead guilty to a DWI in NJ, the conviction will prevent you from suing other driver, even where other driver caused the accident but you were DWI, and may prevent you in certain circumstances from suing the bar / home owner that served you too much. (Note: this tort restriction - on suing the person that served you too much - may not apply to individuals under 21, that plead guilty or are found guilty of DWI, since the server was not legally able to serve the under 21 any alcohol).
Increase in your life insurance premium.
What if I do not have a NJ license?
New Jersey is a member of the Interstate Drivers License Compact, N.J.S.A. 39:5D-1 to -14, and the Interstate Nonresident Violator Compact,N.J.S.A. 39:5F-1 to -30. Thus there is a high likelihood that if you receive a suspension in New Jersey your non-New Jersey driving privileges will be suspended. (However you may be able to have your out-of-state privileges restored administratively depending upon the state if you can show that New Jersey DWI procedure and penalties are illegal / contrary to your home state’s laws and regulations as applicable to DWI.
Effective 2012 a sentencing court must determine Aggravating and Mitigating factors under N.J.S.A 2C: 2C:44-1, when imposing sentence.
UNDER 21 WITH ANY ALCHOHOL IN ONE'S SYSTEM - "Baby DWI" N.J.S.A. 39:4-50.14
Any person in NJ under 21 who operates a motor vehicle with a blood alcohol concentration of 0.01% or more, but less than 0.08% BAC (state does not need to prove intoxication only the presence of alcohol) shall forfeit his right to operate a motor vehicle over the NJ highways of this State or shall be prohibited from obtaining a license for a period of not less than 30 or more than 90 days beginning on the date he becomes eligible to obtain a NJ license or on the day of conviction, whichever is later, and shall perform community service for a period of not less than 15 or more than 30 days.
If guilty, the person shall satisfy the program and fee requirements of an Intoxicated Driver Resource Center or participate in a program of alcohol education and highway safety as prescribed by the chief administrator.
However, a violation of the "baby DWI" statute does not count as a "prior" DWI if the driver is subsequently charge with regular DWI. Also if the driver is under 21 however her reading is over a .08% BAC the driver may be charged under both statutes for the baby DWI and the DWI. There is no baby DWI for persons under 21 where drugs or CDS intoxication is alleged.
In NJ a juvenile is defined as a person under the age of 18. Thus, if a person under 18 is charged with a crime (Tile 2C charge) it will be handled in the Family Court in the county where the juvenile resides. Family Court proceedings, paperwork and records are confidential and often times expugnable. However, if the juvenile is charge with a moving violation (Title 39), including a DWI
or baby DWI, the case will be handled in the Municipal Court, which is open to the general public.
The DWI penalties provided under the provisions of this section shall be in addition to the penalties which the court may impose under N.J.S.2C:33-15, R.S.33:1-81, R.S.39:4-50 or any other law
ALLOWING A DWI DRIVER TO DRIVE N.J.S.A. 39:4-50(a).
In NJ allowing another person (over which you have "control") to operate a vehicle while under the influence can result in a conviction for DWI. State must show that you had reason to believe that the person is under the influence, and must permit the person to operate a vehicle owned by, or in the custody of the defendant. If those requirements are met, the defendant can be charged with DWI and will be subject to the same penalties listed above as if the defendant himself had been intoxicated and driving.
DRIVING WHILE SUSPENDED FOR A DWI or REFUSAL
You will be charged with a traffic violation and possibly a 4th degree felony if this a second violation for driving while on the suspended for a 1st DWI or you are caught driving on the suspended for a 2nd conviction for DWI (mandatory jail - unless the prosecution and court allow you to participate in PTI program).
N.J.S.A. 39:3-40 (Traffic Violation)
“No person to whom a driver’s license has been refused or whose driver’s license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver’s license, shall personally operate a motor vehicle during the period of refusal, suspension, or prohibition.” The law is also violated if you "allow" someone to operate a motor vehicle whose license has been revoked.
If you are convicted of or plead guilty to violating section 39:3-40 of the New Jersey Statutes, you will receive a $500 fine and up to a six-month license suspension. A 2nd offense will result in a $750 fine, up to a six-month license suspension, and up to five days’ imprisonment. A 3rd or subsequent offense will get you a $1,000 fine, up to a six-month license suspension, and imprisonment in the county jail for 10 days.
There is a mandatory 45 day to 180 day jail term, if the person operating the vehicle was involved in an accident resulting in bodily injury to another person. (39:3-40e).
If the suspension was due to a Driving Without Insurance offense under N.J.S.A. 39:6B-2 then there is an additional penalty of $500, an additional 1 to 2 years license suspension, and imprisonment in the county jail for up to 90 days. (39:3-40f(1))
If your license suspension was because of a DUI or refusing to submit to a chemical test and result in a fine of $1,000 dollars, a 12- to 30-month license suspension, and between 10 and 90 days in prison. For a 2nd or 3rd offense, the license suspension and jail sentence are same, however the fine goes up to $1,250 and $1,500, respectively.
If the prior DWI or refusal happened in a school zone or a school crossing, the term of incarceration goes up to 60 to 90 days for a first offense, 120 to 150 days for a second offense, and 180 days for a third or subsequent offense.
FELONY CHARGE FOR DRIVING ON SUSPENDED LIST FOR A DWI or REFUSAL N.J.S.A. 2C:40-26
"It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor's license was suspended or revoked for a first violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and the actor had previously been convicted of violating R.S.39:3-40 while under suspension for that first offense. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
It is a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of N.J.S.A. 39:3-40, if the actor's license was suspended or revoked for a second or subsequent violation of N.J.S.A. 39:4-50 (DWI) or section 2 of P.L.1981, c.512 (C.39:4-50.4a).
A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment of not less than 180 days during which the defendant shall not be eligible for parole."