New Jersey DWI Attorney Blog

As a New Jersey DWI lawyer that only practices DWI law and nothing else, the first question I am often asked is, "What is your fee?" I don't like that question, because it doesn't take into account the reality of why a person is searching for a lawyer to defend one of the most serious charges that the person will likely ever face.

My answer is, "It depends on what you mean by 'affordable'."

You can spend anywhere from $750 to $7500 in initial fees. Chances are that if you are on a limited budget, say a couple thousand, what you define as affordable, may end up costing you a lot more in the end. For instance, if you hire someone that doesn't have the knowledge or skill to really fight your case, what are you spending your money on? If you are convicted, as a first offender, you will not only pay the $700 or so in court costs, but there might be an interlock requirement for your car depending on your breath reading, which will cost you more than $1000.00; you will be surcharged by the State $3000, and your insurance company will separately surcharge you anywhere from $3000 to $10,000 or more over three years.

If you hire someone who has the knowledge, ability and fortitude to really fight for you, and if you are successful, you can save suspension time, get rid of the interlock, or even get rid of the DWI charge. Then again, you might lose, and you certainly will have spent more on a lawyer who knows his/her stuff than someone who may just be planning to hold your hand, walk in with you and hope for the best. There are no guarantees. However, you want to make sure you hire the best lawyer you can to obtain the best result possible.

As a New Jersey DWI lawyer who vigorously fights for my clients, I am honored to have been selected to Best Lawyers in America® for the fifth consecutive year. Today, I received the following email from Steve Naifeh, President of Best Lawyers:

"Congratulations on having been selected by your peers for inclusion in the 2012 edition of The Best Lawyers in America® in the practice area of DUI/DWI Defense. For nearly three decades, Best Lawyers has been regarded - by both the profession and the public - as the definitive guide to legal excellence in the United States.

"Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey (comprising more than 3.9 million confidential evaluations by your fellow top attorneys) and because no fee or purchase is required to be listed, inclusion in Best Lawyers is rightly considered a singular honor. Our annual, advertisement-free publication has been described by The American Lawyer as "the most respected referral list of attorneys in practice."

"The Best Lawyers in America also reaches the largest and most targeted audience of any peer-review listing in the legal profession. Best Lawyers lists appear regularly in Corporate Counsel magazine, which reaches more than 88,000 general counsel. Excerpts from our lists also appear in The Washington Post, The Los Angeles Times, New York magazine, and more than 85 other regional and city magazines around the world, reaching more than 17 million influential readers.

"As you may know, Best Lawyers collaborated this year with U.S.News & World Report, the leading rankings publication in the U.S., to rank U.S. law firms. As a result, the Best Lawyers search engine now also appears on USNews.com, which has 7 million unique visitors each month.

"Again, congratulations on being selected by your peers to be included in Best Lawyers."

I appreciate the honor mostly because it is a peer reviewed selection. I am grateful and humbled that my colleagues, adversaries and other DWI lawyers have chosen me to be part of the select list.

Thank you.

A New Jersey DWI stop, arrest or conviction for an an illegal immigrant involves special and significant concerns. The immigrant has no driver's license or other documents to establish the privilege to drive or to be in this country, and the arrest and conviction may result in his or her deportation.

According to an article in USA Today, published at http://www.usatoday.com/news/washington/2011-07-22-criminal-immigrants_n.htm, drunk driving arrests or convictions are resulting in an increasing number of deportations. Until recently, this was not as big of an issue for New Jersey DWI arrests, as a New Jersey DWI is considered a traffic offense and not a criminal offense. New Jersey is one of only two states to categorize DWI as a traffic offense.

However, depending on how Immigrations and Customs Enforcement (ICE) views the arrest, conviction and circumstances of the New Jersey DWI arrest, even a New Jersey DWI arrest or conviction could form part or all of the reasoning for ICE to commence deportation procedures. It is therefore extremely important to hire a qualified New Jersey DWI attorney to review your case and fight the charges against you. You should also consult with immigration counsel to determine the possibility or likelihood of deportation.

If the New Jersey DWI involves an accident or particularly a fatality, the likelihood of ICE intervention increases dramatically, and is almost a certainty. If a felony level conviction results from the DWI based assault by auto, that conviction will affect immigration status if it comes to the attention of ICE.

According to the USA Today article, the U.S. deported nearly 393,000 people last year. Of those, 27,635 had been arrested for drunken driving. An additional 13,028 were deported last year after being arrested on less serious traffic law violations. Most of the immigrants deported last year had committed drug-related crimes. They totaled 45,003. Drunken driving was third in the number of offenses last year.

ICE attempts to categorize each deported immigrant in its statistics based on the worst crime in the person's record. ICE says the statistics involve only people who have been convicted of a crime. This may be the loop hole that will not cause a New Jersey DWI conviction to result in deportation, since the record of a New Jersey DWI conviction is not reported as a crime. A New Jersey DWI conviction does not appear on an individuals criminal record as reported by the NCIC - National Crime Information Center.

In such a serious situation, it is best to challenge the evidence against you in the most appropriately aggressive way possible. Consult with an experienced New Jersey DWI attorney to evaluate the specific circumstances of your case.

New Jersey DWI cases are subject to the sixty day guideline for case resolution in the New Jersey Municipal Court system. However, it is extremely difficult, if not unlikely to resolve a contested DWI in that amount of time.

The guideline is just that -- a guideline. It is not a requirement, and courts are supposed to be fairly liberal in their interpretation of the rule. Some courts are very strict and press the case forward to the detriment of the State or the defendant, but this is rare, as the courts understand that the cases are supposed to be decided on their merits rather than a calendar. However, if the 60 days have passed and there is an unwarranted delay, the court should move the case forward. In all circumstances, the defendant's constitutional rights must always be considered and protected.

Once discovery (police records, video, etc.) has been requested, it must be provided on an expeditious basis. Often, while some discovery is provided, not everything that is requested or required is given. In that situation, one of the primary ways to enforce defendant's rights is to file a Motion to Compel Discovery. Once the court enters an order compelling the State to provide discovery by a date certain, if the material is not provided by that date, a Motion to Dismiss for failure to supply the court ordered discovery should be filed.

It is also critical to assert your right to a speedy trial at the beginning of your case. If the State or the court does not move your case in a timely fashion, you can file a Motion to Dismiss based on speedy trial grounds.

The constitutional standard for a speedy trial was established by the United States Supreme Court in a case called Barker v. Wingo (1972), and applied by our New Jersey Supreme Court in State v. Szima (1976).

In Barker, the Court set forth a "balancing test ... in which the conduct of both the prosecution and the defendant are weighed" to aid in determining when a defendant's right to a speedy trial under the Sixth Amendment has been violated. The Court identified four factors that should be examined:

• length of delay


• the reason for the delay


• the defendant's assertion of his right


• and prejudice to the defendant

New Jersey DWI breath testing cases are complex, especially due to the new machine being used in New Jersey, the Draeger Alcotest 7110 MKIII-C. While this machine has been held to be reliable by the New Jersey courts, there are still significant issues to challenge regarding the machine and overall breath testing for New Jersey DWI arrested drivers. You just have to know what to look for, and what to ask for to review, to assess your challenge to the machine and establish your defenses.

Breath test results are generally admissible in evidence when the machine is shown to be in proper working order, when the breath test is shown to have been administered by a qualified operator, and the machine was used in accordance with accepted procedures.

It is the job of the defense attorney to investigate these areas. This is done through a process called "discovery", where the defense seeks records regarding the machine, the arrest, and anything else relevant to the arrest and defense of the case from the State. This is done through a letter request to the prosecutor, copied to the police department and the Court Administrator. Our courts have said that "inquiry regarding these facts is extremely material." Information concerning the conditions under which the tests were held, the machine operator's competence, the particular machine's state of repair and identification and documentation regarding the machine used for defendant's tests are all relevant inquiries.

Of particular importance in Alcotest breath testing cases is the digital data log that is downloaded from each machine every six months. In a case called State v. Chun, which set the standards for DWI defense and prosecution of breath testing cases in New Jersey, the court acknowledged that the State should create and maintain a centralized database of information from each machine, regularly uploaded through modem. Defendants should have access to centrally collected and maintained data on their own cases, as well as to the compiled scientific data on matters involving others that has been redacted to shield the personal information related to those other individuals.

Review of this digital data is often critical to formulating a defense in an Alcotest breath testing case. The data is immense in scope, and can yield a significant amount of important information on your own breath test, as well as how the machine was operating over a period of time.

With the Supreme Court's decision in Chun that the machine is scientifically reliable, one of the better ways to challenge the machine now is how it has operated over a period of time. If you can establish that the particular machine you were tested on is operating irregularly, that is not a challenge to the scientific reliability of the machine. It is a challenge as to the machine operability. The cause of the problem may lie with the machine and it's inner functioning, or it may be how the machine was operated by the officer or officers over time.

In any event, it is critical to have a qualified DWI defense attorney review the facts and circumstances of your case. I represented the lead defendant in the Chun case. That was a fantastic experience that yielded an incredible amount of information that I am able to use in the defense of my clients.

Long before the New Jersey DWI case is over, clients wonder whether they should go to Alcoholics Anonymous or even into an alcohol or drug rehab facility, and whether that will help their DWI case.

Certainly, if you are having ongoing issues with alcohol or drugs and need help with the situation surrounding alcohol or drug use, you should absolutely seek assistance with the problem.

Whether it helps the DWI case is very different, and should not affect whether to seek help, if help is needed.

Generally, it is unlikely that going to AA or into rehab will change the outcome of a DWI prosecution, but it may help in sentencing issues with reference to discretionary jail terms. Demonstrating that you are seeking help for your problem and addressing the issues present cannot hurt in attempting to convince a prosecutor or a police officer to look more favorably on your circumstances.

For sentencing, on a first offense DWI conviction in New Jersey, jail can be imposed for up to 30 days. Imposition of jail is discretionary, not mandatory, on a first offense. Where it appears under the circumstances that jail may be imposed on a first offense, demonstrating to the judge that you have undergone rehabilitation treatment or have attended AA may be helpful in convincing the judge that jail is not warranted.

On a second offense DWI conviction, the sentence includes a minimum of 2 days in jail and a maximum of 90 days in jail. Again, where it appears that the circumstances will result in more than the two day jail term, showing that an effort is being made to address the alcohol and/or drug issues may convince the judge that additional jail above the 2 days should not be imposed.

For third offense DWI convictions, jail is mandatory for 180 days. The jail term can be reduced up to 90 days for alcohol-drug in-patient rehabilitation. Going to AA meetings would do nothing to reduce jail time in a third offense situation.

The bottom line is, if you have an ongoing problem with alcohol or drugs, seek help. If you have a DWI arrest, you must also seek a qualified DWI attorney to help you obtain the best results under the circumstances presented.