Articles Posted in Defending the Case

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Driving while intoxicated (DWI) can have significant consequences under New Jersey law. A conviction will result in the suspension of one’s driver’s license, followed by the mandatory use of an ignition interlock device. It also involves a fine that may range from $250 to $1,000, as well as the possibility of jail time. If you have prior DWI convictions on your record, you could face steeper penalties. Exactly when and how these enhanced penalties apply can be confusing. State law defines the penalties for a first DWI offense, a second offense, and a “third or subsequent” conviction. The “or subsequent” language means that the same penalties apply to a fourth, fifth, or sixth conviction as apply to a third conviction. One of the main differences between a fourth conviction and a third one is that judges are less likely to offer any leeway to someone with more DWI cases on their record. They are more likely to impose the maximum penalty allowed by law, which is why a skilled DWI lawyer is essential.

“Lookback Period” for New Jersey DWI Charges

Some states look at the total number of prior DWI convictions over a person’s lifetime when determining the penalty for a new conviction. New Jersey courts mainly look at the ten years before the current offense. For example, if a person is convicted for DWI that occurred on June 1, 2025, the court will look at how many DWI convictions they have in total, and whether any occurred after June 1, 2015:
– One prior DWI conviction from more than ten years ago: The court will treat the current case as a first offense.
– Two DWI convictions from over a decade ago: The court will consider the current case to be their second offense.

The statute does not specifically describe what happens if a person has three or more DWI convictions outside of the ten-year period. A court might view a fourth DWI as a third offense under those circumstances, but it would not make much difference for the penalties.
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It might seem like the offense of driving while intoxicated (DWI) in New Jersey requires proof that a defendant was driving a vehicle. This is not correct, though. Police can arrest you if they find you in a vehicle while intoxicated, even if you are not and have not been driving. One example might involve a person who, rather than driving home, decides to sleep it off in their car. This seems like a responsible choice, but to a police officer, it might look like the person still intends to drive. This intent is one of the key issues in this type of DWI case. A DWI defense lawyer’s job is to question any supposed evidence of intent to drive.

New Jersey Defines “Operate” Very Broadly

The state’s DWI statute defines the offense as “operat[ing] a motor vehicle” while impaired by drugs or alcohol, or with a blood alcohol concentration (BAC) of 0.08 percent or more. It might seem like “operating” necessarily means “driving” a vehicle. This is not how New Jersey courts have interpreted it, though.

A 1963 New Jersey Supreme Court decision held that proof of driving was not necessary for a DWI conviction. The case involved a defendant who was in the driver’s seat while intoxicated with the engine running. No evidence suggested that he had moved the vehicle from where it was parked.
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Video evidence can be useful for either side in a driving while intoxicated (DWI) case. Prosecutors may introduce video from a dashboard camera in a police vehicle or an officer’s body-worn camera to corroborate the officer’s testimony about the defendant’s behavior or appearance. A DWI defense lawyer can use footage to chip away at the state’s case, such as by challenging the officer’s justification for making a traffic stop. Body cams have become increasingly common as a way to document arrests and other police encounters. Police departments and city governments may refuse to release body cam footage in some circumstances, although this is rarely the case for DWI defendants. A recent New Jersey Supreme Court decision expands the availability of body cam footage under the state’s Open Public Records Act (OPRA). How this may affect DWI defense remains to be seen.

Prosecutors have two ways to prove intoxication in DWI cases. They can introduce evidence of blood alcohol concentration (BAC) to show that a defendant was above the “legal limit” of 0.08 percent. They may also call the arresting officer and other witnesses to testify about how a defendant looked or how they were acting. Slurred speech, slowed or clumsy movements, and glassy eyes could be signs of intoxication. An officer may testify about these kinds of observations, as well as observations about a defendant’s performance on field sobriety tests (FSTs). Video evidence may support an officer’s testimony, but defense attorneys may be able to use it to refute what an officer claims on the stand.

Video evidence can challenge the state’s case in the hands of a skilled defense lawyer. While the prosecution might claim that a video shows a defendant “failing” one or more FSTs, the defense can point to features that dispute this. For example, the officer might have asked the defendant to perform a test on uneven ground that throws off their balance. Weather conditions like rain or snow could make it difficult for anyone to maintain balance. A video could even challenge an officer’s description of a defendant’s behavior or appearance, such as if claims of clumsy movements were the result of a cracked roadway or other obstruction.
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New Jersey’s driving while intoxicated (DWI) law requires the state to prove that a person was impaired by alcohol or drugs while driving or attempting to drive. Police use breath testing to measure a DWI suspect’s blood alcohol content (BAC). Anyone driving on public roads in New Jersey has given their implied consent to submit to breath testing. Police and prosecutors must demonstrate that the devices used to test breath samples for BAC are in good working order. Nearly ten years ago, news broke that a former State Police sergeant had falsified maintenance and calibration records for Alcotest devices in five counties, affecting more than 20,000 DWI cases. That case is still affecting DWI cases today, as shown by a 2024 New Jersey Supreme Court decision in which a defendant challenged the use of a prior DWI conviction to enhance his sentence. The court discussed what evidence the state must present to prove that a prior conviction is not one of the 20,000 with tainted evidence.

In 2008, our firm was involved in a case before the New Jersey Supreme Court, State v. Chun, which addressed the use of the Alcotest device in DWI investigations. The court ruled that the Alcotest produces reliable results as long as it receives regular maintenance and calibration. It established procedures for proving that police departments have kept the devices in good repair. Defendants can request this evidence from prosecutors. Failure to maintain a device or to produce the required documentation can result in a court throwing out the BAC results.

The system established in State v. Chun works well enough, assuming that the police keep accurate records of Alcotest maintenance. In 2016, however, news emerged that a State Police sergeant responsible for maintaining numerous devices had failed to perform the necessary calibrations and had falsified records. The New Jersey Supreme Court appointed a special master to review how this affected the reliability of Alcotest results in the counties with inaccurate or falsified records.
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The offense of driving while intoxicated (DWI) can have severe consequences in New Jersey. Penalties can range from relatively small fines to six months in jail, along with driver’s license suspension and mandatory use of an ignition interlock device. Defending against DWI charges often involves disputing the sufficiency of the evidence, but it is also possible to challenge the legality of the entire case. If police fail to respect DWI suspects’ constitutional rights, a court could toss out the entire case. This is what happened in a case before the New Jersey Appellate Division in 2024. The case involved a police officer who suspected a driver of DWI. The court found that his suspicions were legally justified, and that the traffic stop was legal. The officer violated the suspect’s rights, however, by entering the suspects garage after she had driven her car there. This resulted in dismissal of the case.

Both the U.S. and New Jersey constitutions prohibit “unreasonable searches and seizures” and require police to get a warrant before they may search a person or their property. Courts have identified numerous exceptions to the warrant requirement. For example, police may briefly stop a vehicle on the road if they have reasonable suspicion that a driver has committed or is committing a motor vehicle offense or criminal offense. They may not hold a driver longer than is necessary to assess whether an offense had occurred or is about to occur. If they have probable cause to believe driver has committed an offense like DWI, they may continue the investigation, such as by asking them to perform field sobriety tests.

These types of stops are sometimes known as Terry stops. The name comes from the U.S. Supreme Court’s 1968 decision in Terry v. Ohio. The case established rules for traffic stops and other brief detainments by police. Generally speaking, police may not expand their search to additional locations under Terry without a warrant or another exception to the warrant requirement.
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New Jersey’s driving while intoxicated (DWI) statute provides numerous ways to penalize a person after a conviction. It does less to provide resources and treatment to someone who might be struggling with substance abuse issues. Some states have created pretrial intervention (PTI) programs for eligible DWI defendants to help them seek assistance for alcohol or drug addiction. If they complete the program, the court could reduce their penalties or even dismiss the charges. New Jersey has PTI programs for criminal cases involving drugs or alcohol, but these programs are not available in DWI cases. The closest thing to treatment in the DWI statute is the Intoxicated Driver Resource Center (IRDC), which is mandatory for all DWI convictions. The program is brief, however, even for repeat DWI offenders. New Jersey may eventually allow some sort of PTI in DWI cases. For now, though, the main options are to plead guilty or fight the charges.

DWI is a motor vehicle offense in New Jersey, not a criminal offense. This means that DWI cases do not always have the full range of procedural and constitutional protections found in criminal cases. For example, New Jersey DWI defendants are not entitled to a trial by jury. The flip side of this is that the penalties for DWI convictions are not as harsh as they might be if they were criminal charges.

New Jersey PTI programs like Recovery Court are only available in criminal cases. DWI defendants are not eligible, essentially by definition. The only criminal offense under New Jersey law that may arise from a DWI case involves certain scenarios in which a person drives with a suspended license, and the suspension is due to a DWI conviction. This offense is a fourth-degree crime that has a minimum sentence of 180 days in jail. A person convicted of this offense is still not eligible for Recovery Court, which excludes convictions with mandatory minimums.
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New Jersey’s driving while intoxicated (DWI) law applies to most motor vehicles, such as cars, trucks, motorcycles, and e-bikes. Riders of non-motorized bicycles are not subject to New Jersey DWI laws. A separate statute addresses operating a watercraft while under the influence of alcohol or drugs. The boating while intoxicated (BWI) statute is similar to the DWI law, but not identical. The fact that the two laws have different penalties has some important effects. Courts can use prior DWI convictions to enhance the penalties for a new DWI offense. The New Jersey Appellate Division has held that past BWI convictions do not count as prior convictions when determining the penalties for a DWI conviction.

The structure of the BWI law is almost identical to the DWI statute. It prohibits operating a “vessel” in two situations:
– While under the influence of drugs or alcohol; or
– With blood alcohol content (BAC) of 0.08 percent or more.
It defines “vessel” as “a boat or watercraft…used or capable of being used as a means of transportation on water.” A “power vessel” is one that has “machinery for propulsion.” The BWI statute applies to power vessels and vessels that are at least twelve feet long. A canoe that is less than twelve feet long, for example, would not be covered by the law since it is not a power vessel. A motorboat of any length would be covered.

The BWI statute also determines penalties the same way as the DWI statute. It establishes four levels of the offense:
1. First offense with BAC of at least 0.08 percent but less than 0.10 percent;
2. First offense with BAC of 0.10 percent or more, or while under the influence of drugs;
3. Second offense; and
4. Third or subsequent offense.
Penalties may include driver’s license suspension, loss of boating privileges, fines, and jail time.
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The state has the burden of proving guilt in New Jersey driving while intoxicated (DWI) cases. This is a difficult burden to meet. A DWI lawyer’s job, in part, is to challenge the reliability of the methods that prosecutors may use to prove that a defendant was under the influence of alcohol or drugs. Many of the tests that police use are not as reliable as the public might think. A person can fail a field sobriety test for numerous reasons besides intoxication, for example. Breath testing devices can be highly unreliable without careful maintenance and operation. Before prosecutors can introduce evidence based on an unfamiliar scientific process or device, New Jersey courts require evidence that this process or device has the scientific community’s acceptance. This is known as the Frye standard. Several types of evidence used in New Jersey DWI cases have faced the Frye standard over the years.

What Is the Frye Standard?

The Frye standard gets its name from a 1923 decision by the D.C. Circuit Court of Appeals. It applies to methodologies, processes, or devices that courts have not encountered before. In order for evidence based on a new device or process to be admissible, the party introducing it must show that it has “general acceptance in the particular field in which it belongs.”

Many jurisdictions have abandoned Frye because it imposes such a stringent standard of proof. New Jersey courts still use it for criminal and motor vehicle offenses.

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Attorneys representing people charged with driving while intoxicated (DWI) in New Jersey municipal courts can use pretrial motions to give their clients a better chance of achieving a positive outcome. A motion to suppress evidence is one of the most powerful pretrial motions a lawyer can use. It seeks to prevent the state from using evidence obtained in violation of a defendant’s constitutional rights. If successful, a motion to suppress limits the amount of evidence that prosecutors may introduce in court. It may even result in the dismissal of the DWI charge.

What Is a Motion to Suppress?

A motion to suppress is based on the “exclusionary rule.” The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property, with some exceptions. If police conduct a search that violates a defendant’s Fourth Amendment rights, the exclusionary rule blocks prosecutors from using that evidence at trial.

The exclusionary rule applies to any evidence that police could only obtain through an unlawful search. This evidence is known as the “fruit of the poisonous tree.”
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The U.S. Constitution protects people’s rights in court proceedings, particularly cases that can result in jail time and other punishments. This includes driving while intoxicated (DWI) cases in New Jersey and around the country. The Due Process Clauses of the Fourth and Fourteenth Amendments, as interpreted by the courts, require prosecutors to prove a defendant’s guilt “beyond a reasonable doubt.” This is the toughest burden of proof in our legal system. While DWI is a motor vehicle offense in New Jersey, not a criminal offense, a conviction can lead to significant penalties. The same due process protections apply to DWIs and other motor vehicle cases. “Beyond a reasonable doubt” is a highly subjective standard, but it can be the key to defending against a DWI charge.

What Is a Burden of Proof?

In any court proceeding, someone is responsible for establishing a legal claim and providing supporting evidence. This responsibility is known as the burden of proof. Plaintiffs generally have the burden of proof in a civil lawsuit, and prosecutors have it in criminal and motor vehicle cases.

The person with the burden of proof must convince the judge about their legal claims. Since DWI cases in New Jersey do not have jury trials, the judge also decides whether the state has met its burden of proving the facts.
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