A person convicted of driving while intoxicated (DWI) in New Jersey can file a petition for post-conviction relief (PCR). If successful, this will result in the court reopening the case. Since DWI is a motor vehicle offense instead of a criminal offense under New Jersey law, a petition for PCR is filed in the municipal court that originally heard the case. A PCR petition in a criminal case is filed in the Superior Court, Law Division. The New Jersey Appellate Division recently ruled on an appeal of a denial of PCR in a case involving criminal driving while license suspended (DWLS), which is a charge that can follow a DWI conviction. The court vacated the Law Division’s ruling and sent it back for an evidentiary hearing.

New Jersey DWI convictions result in license suspension, with the length of the suspension depending on several factors. A person with no prior DWI convictions in the past ten years, and whose blood alcohol content was less than 0.10 percent, will receive the shortest period of license suspension, equal to the length of time needed for the person to install an ignition interlock device in their car. The longest license suspension period, eight years, comes with a third DWI conviction within the span of a decade.

In most cases, DWLS is a motor vehicle offense. Penalties may include a fine, a brief jail sentence, revocation of one’s motor vehicle registration, and an extension of the driver’s license suspension. Criminal DWLS occurs when a person drives during a period of license suspension that is the result of:
– A first DWI conviction, and the person has a prior DWLS conviction; or
– A second or subsequent DWI conviction.
A conviction of criminal DWLS carries a mandatory jail sentence of 180 days.
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Under New Jersey law, driving while intoxicated (DWI) is a motor vehicle offense that can result in driver’s license suspension, a fine, and a jail sentence. A court may also order someone convicted of DWI to have an ignition interlock device (IID) installed in their vehicle at their own expense. In 2019, the New Jersey Legislature made several changes to the DWI statute. These include modifying the period of driver’s license suspension and making IID use mandatory. The new law took effect at the beginning of December 2019.

Prior DWI Law

Before the new law took effect, New Jersey identified four levels of DWI, based primarily on the number of prior offenses in the ten years preceding the current charge:
1. First DWI offense, with blood alcohol content (BAC) of at least 0.08 but less than 0.10 percent;
2. First DWI offense, with BAC of 0.10 percent or higher;
3. Second DWI offense, regardless of BAC; and
4. Third or subsequent DWI offense.

License suspensions ranged from ninety days for the lowest-level DWI offense, to ten years for the highest. Judges had discretion to order installation of an IID for most first offenses, but it was mandatory for subsequent convictions.

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New Jersey’s driving while intoxicated (DWI) laws apply to everyone who drives on this state’s public roadways, regardless of whether they reside in New Jersey or have a driver’s license issued here. A driver from New York, Pennsylvania, Delaware, or any other state is subject to all of New Jersey’s traffic laws and most of the penalties. A recent decision by the New Jersey Appellate Division addressed a defendant’s claim that this state’s requirement of an ignition interlock device (IID) should not apply to him since his driver’s license is not from New Jersey. The court denied this claim. In doing so, it examined how New Jersey’s DWI laws apply to people from outside the state.

The penalties for a DWI conviction in New Jersey vary based on the number of prior convictions someone has had during the preceding decade. For a first-time conviction or the first conviction in more than a decade, the penalties may vary based on a person’s blood alcohol content. New Jersey also makes it a motor vehicle offense to refuse to submit to breath testing when a law enforcement officer suspects DWI. Penalties for a second, third, or subsequent refusal conviction are harsher than those for a first conviction. Under recent amendments to state law, installation of an ignition interlock device (IID) is required for all DWI and refusal convictions.

A conviction for DWI or refusal results in a period of driver’s license suspension. Driver’s licenses are a function of state law. The New Jersey Legislature cannot authorize license suspension for someone from another state who is convicted of DWI or refusal in New Jersey if they do not have a license issued by New Jersey. The state can, however, revoke a person’s driving privileges in this state. This state is a member of the Driver License Compact (DLC), which is an agreement among states to exchange information about motor vehicle offenses and to enforce penalties for out-of-state convictions. Under the points system used by the New Jersey Motor Vehicle Commission, for example, an out-of-state moving violation results in two points.
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Many cases involving alleged driving while intoxicated (DWI) in New Jersey begin with the stop of a vehicle by police. The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures,” and requires police to obtain a warrant before detaining a person or conducting a search. Courts have identified exceptions, which often apply in urgent situations where police cannot take time to go to a judge for a warrant. Other exceptions apply to routine functions that police are supposed to serve. The “community caretaker” exception, for example, allows police to detain someone briefly, without suspicion of criminal activity, if they believe the person needs assistance. Earlier this year, we were involved in a case before the New Jersey Appellate Division that addressed the community caretaker exception in a DWI case.

New Jersey’s DWI law allows the state to prove that a defendant was intoxicated by presenting evidence of blood alcohol content (BAC) of at least 0.08 percent, or with witness testimony, usually from police, about the defendant’s behavior and appearance. Before the state can introduce any of this evidence, they must demonstrate that the police had a legal justification for stopping the defendant in the first place.

Most traffic stops fall under an exception to the Fourth Amendment’s warrant requirement established by the U.S. Supreme Court in Terry v. Ohio in 1968. Police can briefly detain a person if they have a reasonable belief that the person has committed or is committing an offense. A police officer can stop a vehicle based on suspicion of DWI if, for example, they observe a person driving erratically. The community caretaker exception, however, might allow police to stop a vehicle without such suspicion.
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A conviction for driving while intoxicated (DWI) in New Jersey carries several different types of penalties. These range from administrative measures, such as driver’s license suspension, to more punitive actions like fines and possible jail time. Many defendants convicted of DWI must report to an Intoxicated Driver Resource Center (IDRC) to undergo an assessment and participate in services, such as educational programs about drug and alcohol addiction. Failure to attend as required results in jail time. The court must include detailed information about the IDRC and the defendant’s obligations in its judgment. The New Jersey Appellate Division recently remanded a DWI case to a lower court, finding that the court failed to include IDRC information as required by the DWI statute.

The penalties for a DWI conviction depend on two main factors:
1. The number of prior convictions in the past ten years; and
2. In the case of a first offense, or first in the past decade, the defendant’s blood alcohol content (BAC) at or near the time of their arrest.
Penalties increase for a second conviction within a decade and again for a third or subsequent conviction. A first offense can have greater penalties if a defendant’s BAC was 0.10 percent or higher, rather than merely above the “legal limit” of 0.08 percent. The IDRC provisions of the DWI statute mainly apply to first-time convictions.

Subsection (f) of the DWI statute directs the counties of New Jersey to establish IDRCs in accordance with guidelines from the state government. Their purpose is to serve “as community treatment referral centers and as court monitors of a person’s compliance” with the conditions of their sentence. Each county may operate its own IDRC, or several counties may have a regional center. Camden County has its own program, run by Camden County College. The state’s Intoxicated Driving Program oversees all of the county programs.

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Drivers in New Jersey are obligated by state law to provide breath samples to police when they suspect driving while intoxicated (DWI). Police throughout the state use a device known as the Alcotest to determine a driver’s blood alcohol content (BAC). We were involved in a case before the New Jersey Supreme Court in 2008, State v. Chun, which resulted in detailed rules for the use and maintenance of Alcotest devices. This includes a requirement of two separate breath tests. The New Jersey Appellate Division considered an appeal last fall from a DWI defendant who argued that the police did not follow the requirements set out in Chun. The court’s ruling addresses how precise police must be with regard to waiting between breath tests.

Prosecutors can prove, for the purposes of the DWI statute, that a defendant was under the influence of alcohol by presenting evidence of BAC at or above 0.08 percent. State law requires drivers to submit to breath testing, viewing the act of driving on New Jersey roads as giving implied consent. Refusal to provide breath samples upon request by police is a separate motor vehicle offense, punishable by a fine and driver’s license suspension.

The New Jersey Supreme Court’s ruling in Chun addressed numerous concerns about the Alcotest device’s accuracy and reliability. The court found that police must collect at least two samples, by which the driver exhales into a tube connected to the device. A special master appointed by the court noted the potential for contamination during the time between a driver submits their first breath sample and their second. To account for this, the device’s software locks everything down for two minutes to give the machine time to clear out the first breath sample.

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A person charged with driving while intoxicated (DWI) in New Jersey might decide to plead guilty, instead of going to trial. Regardless of why they make that decision, the court must follow procedures set by state law that ensure protection of the defendant’s rights. This includes a conversation between the defendant and the judge, known as the “plea colloquy,” in which the judge determines the legal validity of the guilty plea by asking the defendant questions and advising them of their rights under state law, the New Jersey Constitution, and the U.S. Constitution. If the information obtained during the plea colloquy does not meet the standard set by the New Jersey Rules of Court, the plea could be ruled invalid. The Appellate Division reached this conclusion in a decision issued in late 2020, finding that the judge never asked the defendant to acknowledge certain key facts of the prosecution’s case.

State law defines DWI in two ways. Both definitions involve operation of a motor vehicle while impaired by alcohol or drugs. If the state can prove that a defendant had blood alcohol concentration (BAC) of at least 0.08 percent while they were driving, or soon afterwards, this is considered evidence of legal impairment. Without BAC evidence, prosecutors must prove impairment through other evidence, such as testimony from an arresting officer about the defendant’s driving, behavior, or appearance.

Rule 7:6-2(a)(1) governs guilty pleas in municipal court cases, including New Jersey DWI cases. A municipal court judge cannot accept a guilty plea without conducting a plea colloquy to determine that the defendant is making the plea voluntarily, that they have an “understanding of the nature of the charge and the consequences of the plea,” and that they acknowledge the “factual basis for the plea.” The judge can establish each of these by asking the defendant questions. If the judge is not satisfied that the defendant meets these criteria, they should not accept the defendant’s guilty plea.

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New Jersey’s driving while intoxicated (DWI) statute gives prosecutors two methods of establishing that a defendant was too impaired to operate a vehicle legally. They can introduce evidence indicating that the defendant’s behavior and appearance at or near the time they were driving were consistent with intoxication due to alcohol or drugs. Prosecutors may also prove intoxication by showing that a defendant’s blood alcohol content (BAC) was above a certain level. What is BAC, though? Simply put, it is a measurement of how much alcohol is present in a person’s body. How police measure BAC is often a matter of controversy, so a New Jersey DWI attorney’s knowledge of how state law uses BAC is important to understanding how to defend against DWI charges.

BAC in New Jersey DWI Law

The DWI statute defines the offense as either:
1. Driving “while under the influence of” drugs or alcohol; or
2. Driving with BAC of at least 0.08 percent.
With evidence that a defendant had BAC of 0.08 percent or more, the state does not necessarily have to provide evidence of extrinsic details like bloodshot eyes or the odor of alcohol. New Jersey law presumes that a person was intoxicated, and therefore unable to drive, when their BAC was above the “legal limit.” This is often known as per se DWI.

State law requires every driver to submit to breath testing to determine BAC, and makes refusal a separate motor vehicle offense. A defendant can challenge the admissibility of the state’s BAC evidence based on a 2008 decision by the New Jersey Supreme Court, which established procedures that police must follow to calibrate and maintain the Alcotest devices used to perform breath tests.

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A conviction for driving while intoxicated (DWI) in New Jersey can result in a range of penalties, including driver’s license suspension, a fine, use of an ignition interlock device (IID), and possibly even jail time. Under New Jersey law, DWI is classified as a motor vehicle offense rather than a criminal offense. This means that municipal courts hear DWI cases, and the maximum penalties for a conviction are less than they would be in many criminal cases. This is not to say, however, that a DWI conviction is not a very serious matter. Since municipal courts hear most cases involving motor vehicle offenses, a defendant charged with DWI might face charges of other motor vehicle offenses as well. Prosecutors might, in some cases, be willing to dismiss the DWI charge in exchange for a guilty plea to a different offense. This is not always an option, but it can be a way to avoid the more onerous penalties that might come with a New Jersey DWI conviction.

Unlike many other motor vehicle offenses in New Jersey, the penalties for DWI increase based on the number of prior convictions an individual has during the ten years before the current alleged offense. A first DWI conviction, with relatively low blood alcohol content, results in a fine of $250 to $400, possible jail time of up to thirty days, and suspension of one’s driver’s license until they install an IID in their vehicle. A third or subsequent conviction within ten years results in a mandatory jail sentence of 180 days, an eight-year license suspension, and a $1,000 fine.

Many DWI cases originate with a traffic stop by police. An officer must have reasonable suspicion of a motor vehicle or criminal offense in order to stop someone. This could include allegedly running a stop sign or a red light or driving erratically. In such cases, the state might charge a defendant not only with DWI, but also with whatever alleged motor vehicle offense or offenses prompted the traffic stop in the first place. In most cases, the potential penalties for other motor vehicle offenses are not as severe as they are for DWI.

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The law behind driving while intoxicated (DWI) in New Jersey is more complicated than it might appear at first glance. Multiple court decisions interpreting the DWI statute have held that prosecutors do not have to provide direct evidence that a person was driving. They only need to prove that a person had both the intent and the opportunity to drive while impaired by alcohol. The New Jersey Superior Court, Appellate Division affirmed this view of the DWI statute in a February ruling. It denied the appeal of a defendant who was convicted after police found him sleeping in his car with the engine running. This is an important decision for both DWI lawyers and the general public.

New Jersey’s DWI statute establishes a two-part definition of the offense. The state must prove that a defendant (1) operated a vehicle (2) while impaired by drugs or alcohol. Prosecutors can prove the second point in several ways, including evidence of blood alcohol content (BAC) and eyewitness testimony from police about the defendant’s appearance and behavior. Much discussion of DWI defenses focuses on how the state proves impairment. Maybe the police failed to maintain the Alcotest device adequately, and the BAC evidence should be thrown out. Perhaps the officer who pulled a defendant over lacked a legal justification for the stop. Sometimes, however, defendants dispute the first element of the offense.

As the Appellate Division notes in its February decision, New Jersey courts have taken a broad view of what it means to “operate” a vehicle. In a 1987 decision, the New Jersey Supreme Court stated that “a pragmatic definition of this term is necessary” in order to fulfill the purpose of the DWI statute, which is “to deal with the risk that intoxicated drivers will cause harm to themselves and to others.” The court found that intoxicated drivers can pose this sort of risk “even before [they] may have put [their] car in motion.” It cited a 1963 decision, in which it held that “a person may be “operating” a motor vehicle…even when the vehicle has not been moved.”

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