Articles Posted in DWI Information

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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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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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Operating a vehicle is a significant responsibility, requiring careful attention to your surroundings and the safety of others. Alcohol and many types of drugs can interfere with attention, reaction time, and other abilities that you need when behind the wheel or at the controls. New Jersey treats driving while intoxicated (DWI) as a serious motor vehicle or traffic offense. Other vehicles, including boats and airplanes, also have legal restrictions based on impairment by alcohol or drugs. In 2018, the New Jersey governor signed a bill outlawing the operation of aerial drones while under the influence. The “drunk droning” law has not received much attention in the courts, so far, but it is worth exploring how it compares to the state’s DWI law.

What is “Drunk Droning”?

New Jersey’s DWI law requires three basic elements: a person, a motor vehicle, and the influence of alcohol or drugs. Prosecutors can prove that a driver was impaired based on blood alcohol content (BAC) of 0.08 percent or more or other evidence indicating the influence of drugs or alcohol. This typically involves police officers’ observations of a driver’s behavior and appearance.

The new law applies the same restrictions to “unmanned aircraft,” which it defines as any aircraft that can only be operated by a person remotely. An ‘unmanned aircraft system” (UAS) consists of the aircraft itself and the equipment needed to operate it, such as a remote control. A person may not operate a UAS while impaired by alcohol or drugs or if they have BAC of at least 0.08 percent.

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Operating any kind of powered vehicles, such as a car, truck, boat, or airplane, can be dangerous to yourself and others around you. You need a license to drive a motor vehicle on public roads in New Jersey. Driving while intoxicated (DWI) is a motor vehicle offense under New Jersey law that can result in license suspension, fines, and possible jail time. Aircraft can be even more dangerous than cars or trucks, so the requirements for becoming a pilot are far stricter than most types of driver’s licenses. The penalties for operating an aircraft while under the influence of drugs or alcohol — also known as flying while intoxicated (FWI) — can result in penalties under both state and federal law.

Who Is Legally Allowed to Fly a Plane?

Each state handles driver’s licenses for its residents. The Federal Aviation Administration (FAA) deals with pilot licensing, known as certification, for the entire country. The type of certification depends on factors like the size of the aircraft and the number of passengers. Everyone starts with a student license. From there, the options include:
– Recreational pilots: Limited to small aircraft, short distances, and a small number of passengers;
– Private pilots: Can fly small aircraft with passengers for business purposes; and
– Commercial pilots: Can operate large commercial jets.

What Is Flying While Intoxicated?

Both state and federal law prohibit FWI. New Jersey defines the offense as operating an aircraft “while under the influence of or using intoxicating liquors, cocaine or other habit-forming drugs.” Unlike the DWI statute, it does not specify a blood alcohol content (BAC) amount at which a pilot is presumed to be impaired. Federal law handles that aspect of the offense.
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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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In any New Jersey courtroom proceeding, neither side can present any evidence unless the court has found that it is admissible. Municipal court judges hearing driving while intoxicated (DWI) cases often have to rule on defendants’ motions to suppress evidence that police allegedly obtained unlawfully. They must rule on objections to testimony based on rules about relevance and hearsay. Scientific evidence presents additional challenges, especially when it involves new or unfamiliar techniques or technology. With police around the state preparing to roll out a new Alcotest device in DWI cases, it is worth considering how courts decide whether to admit new scientific evidence.

Why is there a need for a separate standard for scientific evidence?

Trials and hearings may have two types of witness testimony. Fact witnesses can testify about what they saw and heard. They are not supposed to insert their own opinions. A person who witnessed a car accident, for example, can testify about what they saw, but not about why they think the accident happened.

An expert witness can testify about their opinions on certain matters. In order for the court to accept them as an expert witness, they have to testify about specialized education, training, or experience that gives them greater insight into an issue than most people. A DWI defendant who failed the field sobriety tests because of a leg injury could have their doctor testify about that injury. The doctor’s medical training allows them to offer an opinion that the leg injury could have caused the defendant to stumble.
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A case involving alleged driving while intoxicated (DWI) can have many possible outcomes, ranging from the dismissal of all charges to a conviction after a trial before a municipal court judge. Even then, a defendant might still have the right to appeal or to seek post-conviction relief. Like any kind of court proceeding, few DWI cases ever go to trial. Many DWI cases, perhaps most, result in pleas or plea agreements of some kind. New Jersey law limits the use of plea agreements in DWI cases, but a knowledgeable DWI attorney can advise their clients about whether a plea would be a good idea. One type of plea that is available in New Jersey DWI cases, the conditional guilty plea, enables a defendant to appeal certain decisions made by a municipal court before trial.

Prosecutors have the burden of proving that a defendant is guilty of each element of the offense of DWI. State law defines DWI as operating a motor vehicle either (1) while under the influence of alcohol or drugs or (2) with blood alcohol content (BAC) of at least 0.08 percent. Chemical testing of a DWI suspect’s breath, blood, or urine can determine their BAC. Even without chemical test results, a prosecutor can establish that a defendant was impaired with eyewitness testimony from police officers and expert testimony from drug recognition experts.

Defending against a DWI charge could involve challenging any part of the state’s case. A DWI lawyer might, for example, challenge the validity of the initial traffic stop. If the police officer did not have reasonable suspicion of any sort of traffic violation, then the stop violated the defendant’s Fourth Amendment rights. The court should suppress any evidence obtained as a result of the unlawful traffic stop. A successful motion to suppress based on an unlawful traffic stop often results in dismissal of the case, since it would leave the state with very little evidence. A defendant and their attorney could also move to suppress evidence based on other violations of their rights, such as breath test results from an Alcotest device that was not in compliance with state law.
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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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In order to prove guilt in driving while intoxicated (DWI) cases in New Jersey, law enforcement must show that a defendant was under the influence of either alcohol or certain types of drugs. State law allows them to use chemical tests that allegedly show the presence of alcohol or drugs. Chemical testing for alcohol has an extensive body of law addressing how police must collect and test samples of a DWI suspect’s breath. For other drugs, they must use samples of blood or urine. This type of testing can be much less certain, both scientifically and legally. Urine testing, in particular, has significant reliability issues. If the state tries to introduce results from urine tests, DWI attorneys must carefully examine the evidence to look for errors.

New Jersey has used chemical testing in DWI and DUID cases for decades. In 1964, the New Jersey Supreme Court held that “[a]lcoholic content in the blood furnishes a scientific measure of the extent of the influence of liquor upon the person.” It went on to state that “chemical analysis of the blood itself, urine, breath and other bodily substances is a scientifically accurate method of ascertaining that content.”

State law currently defines the offense of DWI in two ways: “operat[ing] a motor vehicle” either (1) while impaired by an “intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;” or (2) “with a blood alcohol concentration [BAC] of 0.08% or more by weight of alcohol in the defendant’s blood.” BAC above the “legal limit” of 0.08% creates a presumption that the defendant is legally impaired by alcohol. The state’s implied consent statute makes breath testing mandatory in DWI investigations.
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