NJ DWI FAQ | See also: NJ Criminal Defense FAQ
Q) How does my prior DWI, DUI or refusal conviction affect a new charge?
A) If you have sustained a previous DWI, DUI, or refusal conviction, the fines and penalties for each subsequent conviction become exponentially more severe and some include mandatory jail. There are many variables that come into play with multiple offenses. Out of state convictions count with some exceptions. The time between the convictions is a factor. The prior offense, whether DWI, DUI, or refusal can have bearing. You should discuss this issue with your lawyer.
Q) If I blew over the limit, am I automatically guilty?
A) NO. The Alcotest® 7110 is very sensitive and temperamental. It requires constant maintenance and involves many features that can affect the accuracy of its BAC calculation and thus admissibility to convict you. New Jersey DUI Laws are dynamic in that Courts and Judges decide cases every day that affect the laws governing DUI and DUI defenses. Seemingly minor procedural mistakes can greatly effect the BAC readings and their admissibility in court. These procedures can be as minor as failing to change the mouthpiece or as blatant as a failure to properly observe the individual for the legally mandated timeframe before administering the breath test. Minor deficiencies may result in challenges that can render the reading invalid, and thus potentially preventing the State from convicting you of a DWI or DUI.
Q) Are DWI or DUI charges Criminal Offenses?
A) NO. In New Jersey a DWI or DUI is a motor vehicle violation and is not considered a criminal offense.
Q) Can a DWI or Refusal be expunged?
A) NO. Under New Jersey Statute 2C:52-28, arrests or convictions for motor vehicle offenses, including DWI or Refusal, contained in Title 39 (New Jersey Motor Vehicle and Traffic Laws) cannot be expunged.
Q) Are the DWI laws different for people under 21?
A) DWI laws for people under 21 are more strict. New Jersey has a zero tolerance underage drinking law and as such a person who is under the legal drinking age of 21 can be convicted of an “underage DWI” if he or she is operating a motor vehicle with a BAC between 0.01% and 0.08%. If the individual blows a BAC of 0.08% or above, or shows signs of intoxication, he or she can be charged with a DWI or DUI and will be subject to all the fines and penalties normally associated with a DWI for a person of legal age.
Q) Am I required to provide a breath test?
A) New Jersey drivers have been required to submit to a chemical breath test to confirm blood alcohol concentration (BAC) since the early 1950's. In its early stages, a refusal to submit to a breathalyzer examination did not impose significant penalties; therefore, a refusal in the past may have been an advisable approach in order to avoid providing the police with sufficient proof to convict an individual of DWI or DUI. Recognizing the weakness, the legislature has continually strengthened the refusal law to a point where the current refusal statute carries an automatic license suspension equal to that of the upper tier (i.e., above .10) DWI or DUI.
Q) What constitutes a refusal to submit to a breath test in New Jersey?
A) The state has a very straightforward and simple burden in proving that an individual has refused to submit to a breath test. The state must first prove that an individual was driving a motor vehicle on a public or quasi-public road. The second required proof is that the individual appears to have driven a vehicle or intended to drive a vehicle while intoxicated. The third proof is that an individual was requested to submit to a breathalyzer examination and refused or responded in any way that was not a clear yes.
Q) Does an out of state DWI count as a prior offense?
A) Yes. In most cases, An out of state DWI will count as a prior offense and subject you to enhanced penalties for each subsequent DWI offense in New Jersey. there are some exceptions which should be discussed with your lawyer.
Q) I have an out of state drivers license. Will I lose my license in my home state?
A) Likely. In most instances, a DWI conviction in New Jersey will be reported back to your home state by the New Jersey MVC under the Interstate Drivers License Compact. The reporting of the New Jersey DWI conviction may cause your home state to suspend your driver's license.
Q) Will I have a criminal record if convicted of DWI, DUI or Refusal?
A) NO. Unlike many other states, DWI and DUI offenses are not criminal offenses under New Jersey Law. Even though not criminal, DWI, DUI and Refusal offenses in New Jersey carry very serious penalties. In addition to the loss of your New Jersey driving privileges you could be sentenced to jail under certain circumstances. The conviction will, however, remain on your motor vehicle record.
Q) What is the difference between a DWI and refusal conviction?
A) The major difference between a DWI and Refusal conviction in New Jersey is there is a possibility of jail time for a DWI. There is no possible jail time for a Refusal conviction. A refusal is not considered a DWI for subsequent offense purposes which could have a large impact if you are later convicted of DWI. Also, a Refusal conviction results in the mandatory installation of an Ignition Interlock Device whereas in a DUI it is up to the court's discretion.
Q) What happens if I am caught driving with a suspended license for DWI, DUI or Refusal charges?
A) If you have had your license suspended due to a DWI, DUI or Refusal conviction and continue to drive, you will undoubtedly face even more repercussions if caught. If you are caught driving with a suspended license for DWI, DUI or refusals will extend the suspension period for an additional one to two years, plus you will go to jail for at least 10 and up to 90 days. In addition, there will be a revocation of your vehicle registration, and significant fines and other penalties. If there is an accident involved that causes bodily injury, you could face 45-180 days in jail. Other circumstances and multiple offenses can make this charge even more serious.
Q) Can I still drive to school with a DUI conviction and suspension?
A) NO. A DWI driver's license suspension is absolute in NJ from the time of conviction until reinstatement. There are no work permits or conditional licenses available under any circumstances. Some other states have such licenses but New Jersey has a complete ban on driving during the period of suspension. Driving while suspended will result in mandatory jail.
Q) How does the breathalyzer work?
A) The State of New Jersey has moved away from using “breathalyzers” which have been in use here since the 1950's to determine blood alcohol content (BAC). The State now uses the Draeger Alcotest® 7110 MKIII-C. Mr. Villani has been trained by Draeger on the use and operation of the instrument. The Alcotest® 7110, is extremely sophisticated and quite sensitive; using a combination of electrochemical and infrared technologies to test an individual's BAC. This is a non-invasive blowing test where an individual blows into a breath tube and a BAC calculation is obtained.
Q) What is an ignition interlock device?
A) If your driver's license was suspended for a DWI or Refusal you may be required to install an ignition interlock device. This device is attached to the ignition of your vehicle. It has a breath tube and prevents the vehicle from starting if you blow into it and your BAC exceeds 0.05%. If the court sentences you to install an interlock device, you will receive a notice of suspension from MVC with instructions on how to obtain the device. Failure to have an ignition interlock installed when ordered by the Court could result in an additional one year driving privilege suspension. Ignition interlock manufacturers have installation locations throughout New Jersey. When selecting an ignition interlock provider, consider the installation and monitoring fees and installation center site convenience.
Q) Is there a jury in a DWI case?
A) In New Jersey, there is no jury for a DWI case. Generally, it is a municipal court judge who will decide your guilt or innocence.
Q) If I lose my driving privilege, when will it begin?
A) If you are convicted at trial or plead guilty, the loss of your driving privileges will begin immediately upon the Municipal Court Judge sentencing you. You will be required to give your current driver's license to the court staff prior to leaving the court building. You must surrender your license at Court.
Q) Does a DWI result in motor vehicle points being added to my license?
A) NO. There are no points assessed to your license by the New Jersey Motor Vehicle Commission. A DWI conviction will result in a surcharge payable to the MVC of $1,000 per year for three years. DWI will result in 9 insurance eligibility points which may cause you to have to purchase insurance through the New Jersey Personal Auto Insurance Plan for a three-year period.
Q) How can Villani & DeLuca, P.C. help in the defense of my DWI case?
A) As experienced New Jersey DWI defense attorneys we will review and thoroughly scrutinize every aspect of the facts and discovery (investigation reports) of your case. We will examine whether the arresting officer had a legally valid reason to pull you over, the observations made by the police officer, and validity of field sobriety tests conducted. Police officers may not pull over any driver on a mere whim or hunch. We will review and challenge every aspect of your arrest, leaving no stone unturned in ensuring that all laws governing police officers were followed and that your Constitutional rights were not violated. Depending on the facts of your case, Villani & DeLuca may contact one of our many outside experts to assist in your defense.
Furthermore, we will ensure that the State and Police Department have met their burden of supplying all required proofs prior to trial. We will review and challenge the Police Department's reliance on the Alcotest 7110 in your arrest. Thousands of pages have been written on the laws of New Jersey Drunk Driving. The lawyers at Villani & DeLuca have encyclopedic knowledge of these laws and will use their decades of legal experience to protect your rights.
Villani & DeLuca P.C. are experienced DWI Defense attorneys. Call (732) 709-7757 for a Free phone consultation.