DWI image with a full shot glass and a set of car keys next to the shot glass

DWI Frequently Asked Questions

What do police officers look for when searching for drunk drivers on the highways?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

  • Turning With a Wide Radius
  • Straddling Center of Lane Marker
  • Appearing to be Drunk
  • Almost Striking Object or Vehicle
  • Weaving
  • Driving on Other Than Designated Highway
  • Swerving
  • Speed More Than 10 mph Below Limit
  • Stopping Without Cause in Traffic Lane
  • Following Too Closely
  • Drifting
  • Tires on Center or Lane Marker
  • Braking Erratically
  • Driving into Opposing or Crossing Traffic
  • Signaling Inconsistent with Driving Actions
  • Slow Response to Traffic Signals
  • Stopping Inappropriately (Other Than in Lane)
  • Turning Abruptly or Illegally
  • Accelerating or Decelerating Rapidly
  • Headlights Off

Speeding, incidentally, is not a symptom of DWI; because of quicker judgment and reflexes, it may indicate sobriety.

If I am stopped by a police officer and if he asks me if I’ve been drinking, what should I say?

You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication — and it may explain the odor of alcohol on the breath.

Do I have a right to an attorney when I am stopped by an officer and asked to take a field sobriety test?

In New Jersey, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

What is the police officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academies are:

  • Flushed face
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol on breath
  • Slurred speech
  • Fumbling with wallet trying to get license
  • Failure to comprehend the officer’s questions
  • Staggering when exiting vehicle
  • Swaying/instability on feet
  • Leaning on car for support
  • Combative, argumentative, jovial or other “inappropriate” attitude
  • Soiled, rumpled, disorderly clothing
  • Stumbling while walking
  • Disorientation as to time and place
  • Inability to follow directions

What should I do if I’m asked to take field sobriety tests?

There are a wide range of field sobriety tests (FST’s), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the breath  test, where refusal to submit may have serious consequences, you are not legally required to take any FST’s. The reality is that officers have usually made up their minds to arrest when they give the FST’s; the tests are simply additional evidence which the suspect inevitably “fails.” Thus, in most cases a polite refusal may be appropriate.

Why did the police officer make me follow a penlight with my eyes to the left and right?

This is the “horizontal gaze nystagmus” test, a relatively recent development in DWI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration more than .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible in New Jersey.

The police officer never gave me a Miranda warnings: Can I get my DWI case dismissed?

No. The police officer is supposed to provide a Miranda warnings after he arrests you. Often, however, the police fail to do so. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state’s “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your driver’s license.

Can I represent myself? What can a lawyer do for me?

You can represent yourself — although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing issues.

What can a lawyer do? An attorney can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

What is a sentencing “enhancement”?

New Jersey law increases the punishment in drunk driving cases if certain facts exist. The most common of these enhancements is an earlier conviction for the same or a similar offense within ten years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child was in the car at the time
  • The driver had a CDL and at the time was driving a commercial vehicle
  • The defendant refused to submit to a breath test
  • There was property damage or injury
  • The defendant was under 21 (“zero tolerance” laws commonly require a much lower blood-alcohol level, and impose longer license suspensions).

The existence of serious bodily injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, if special circumstances exist, murder charges.

What is “mouth alcohol”?

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

What defenses are there in a DWI case?

Potential defenses in any given drunk driving case there almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  • Driving: Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
  • Miranda:Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • “Under the influence”: The officer’s observations and opinions as to intoxication can be questioned — the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Also, witnesses can testify that you appeared to be sober.
  • Blood-alcohol concentration: There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witness, and/or the defense can hire its own forensic chemist.
  • Testing during the absorptive phase: The blood, breath or urine test will be unreliable if performed while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
  • Regulation of blood-alcohol testing: The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.

Should I agree to take a breathalyzer test? What happens if I don’t?

There are three adverse consequences for refusing to submit to a breath or blood test (or urine if neither are available or if drugs are suspected): Your driver’s license will be suspended for 7 months to 1 year in addition to the suspension for DWI. If this is a second offense, the suspension is for 2 years. The fact of refusal can also be introduced into evidence at trial as evidence of “consciousness of guilt.” Of course, the defense is free to raise other reasons for the refusal, such as the fear of needles or the traditional offense will be charged.

Will a driver go to jail if he is convicted of DWI?

On a first time DWI offense where there is no accident with serious injury to a third party, most drivers will not be sentenced to jail. If the driver has a high BAC reading, then the judge may impose some community service, and he may also impose a stiffer fine.

On a second or later offense, the chances of receiving a jail term increase significantly. However, an experienced lawyer can usually find a way to keep a driver out of jail for a second or the third offense. Most of the time the judge will not sentence the driver to a jail term for a second offense. The court will order the driver come to the Municipal Court on numerous days and watch the court proceedings. Each day the driver sits in at court will constitute as one day in jail.

For a third time DWI offense, the driver must receive a mandatory 6 month jail term. There is a 90-day stip for this six-month term. In simpler terms, the DWI driver must serve 90 days in the County Jail. However, 90 days of the jail sentence can be served by performing community service, or by enrolling into a rehab program.

What are the sentences for DWI in New Jersey?

For the first offense DWI, the fines range between $250 and $400. A driver must attend Intoxicated Driver Resource enter (IDRC) for 12 to 48 hours. A driver must pay $100 for the IDRC program. A driver must also pay a $50 Violent Crimes Compensation Board (VCCB) penalty, and a $75 Safe Neighborhood Fund Assessment. A driver can be sentenced to up to 30 days in jail. A driver will also lose his driver’s license from 7 to 12 months.

If a driver is able to have the DWI charge dropped to driving while appeared, then the driver will only lose their driver’s license to 3 months. A driver must have a BAC lower than .10% in order to receive the shorter suspension for the driving while impaired charge.

For a second DWI offense, the fines range from $500 to $1,000. A driver must perform community service for a period of 30 days. A driver must attend the IRDC for 12 to 48 hours. A driver must pay $100 to attend the IRDC program. A driver must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A driver can be sentenced to a jail term for up to 90 days. Finally, a driver will lose his driver’s license for a mandatory 2 years.

For a third or a subsequent DWI offense, a driver will be fined $1,000. The driver must attend the IDRC for 12 to 48 hours. A driver must pay $100 for the IDRC program. A driver must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A driver will be sentenced to jail for a term of 180 days. However, 90 days of the jail sentence can be served performing community service. A driver will lose his driving privileges in New Jersey for 10 years.

What happens if a DWI driver is stopped in a “School Zone?”

If a DWI driver is arrested in a “School Zone” then basically the fines and the length of the driver’s license suspension are doubled. This is a strict liability offense. The DWI stop must occur within 1,000 feet of the “school zone.” For a first time offense, the license suspension is 1 to 2 years. For a second time offense, the license suspension is 2 to 4 years. The jail terms and the fines are also doubled. The “school zone” provisions are often used as leverage for the prosecutor to obtain a conviction. In many cases, the prosecutor may drop the “school zone” charge in return for a straight plea to the DWI charge. A driver cannot use the defense that since school was closed, that the area cannot be considered a “school zone.” A driver can be charged for this offense even if he is stopped in the middle of the night and there is no school in session.

What is the “Ten Year Rule”?

The “Ten Year Rule” basically means that a ten-year-old DWI conviction cannot count as a prior conviction for DWI sentencing purposes. The “Ten Year Rule” does not apply in a third time offender case. I predict that the “Ten Year Rule” will be abolished shortly. The basic premise of this rule is that a DWI driver should not receive a sentencing enhancement if his prior DWI conviction is ten years old or more. The “Ten Year Rule” can get very complicated. However, in many cases this rule can save a DWI driver from being sentenced as a second offender.

Does a DWI conviction in another State besides New Jersey count as a “prior conviction” for sentencing purposes?

In many cases, a DWI driver may have prior DWI conviction(s) in another state. A DWI conviction in a sister state also counts as a prior conviction for New Jersey DWI sentencing purposes. However, an experienced DWI attorney can always argue that the constitutional guaranties of the prior sister state DWI conviction is illegal. Therefore, a crafty lawyer can always make arguments that the out of state DWI conviction should not count as a prior conviction.

Before a DWI driver is sentenced, the Municipal Court judge must run the driver’s abstract, and then review it for prior DWI convictions. In many cases, a DWI driver’s prior out-of-state conviction(s) will not appear up on the abstract. A DWI driver has an obligation to be truthful and to inform the Municipal Court of his prior out-of-state DWI convictions. Many sneaky DWI drivers lie to the Municipal Court and they refuse to disclose their prior out of state DWI convictions. Sometimes, they get away with these lies. Sometimes, they are busted. If the driver is busted then he could be indicted for perjury charges.

What happens to a New Jersey driver if he obtains a DWI in another State?

If a New Jersey citizen obtains a DWI conviction in another state then eventually he will also be suspended in New Jersey. Once the out-of-state DWI conviction is finalized, then the sister state will report it to New Jersey DMV. Thereafter, the NJ DMV will file an administrative case to request a suspension of the person’s New Jersey driver’s license. The New Jersey driver will also receive surcharges, and he also will be required to attend IRDC classes.

Are the DWI laws different if the driver is an “Underage Drinker”?

The DWI laws are much stricter for the “underage drinker.” An underage drinker cannot have a trace of alcohol in their system. All the prosecution must prove is that the defendant had a blood alcohol concentration of at least .01% but less than .08%. An underage driver convicted of this violation is required to perform between 15 and 30 days of community service. The underage driver is required to lose his driver’s license for 30 to 90 days. Finally, the underage driver must also attend the IRDC. In summary, an underage driver can be convicted of this charge for only consuming just one alcoholic beverage. A minor is not legally permitted to have even a trace of alcohol in his system.

Can a driver be convicted for a DWI charge and for Refusal to Submit to a Breath Test?

In many cases, the driver will be charged with both a DWI and a Refusal charge. If a driver is convicted of both charges, then the Municipal Court judge has no alternative but to impose consecutive sentences on both convictions. Under New Jersey law these charges are considered to be separate offenses, and they do not merge at sentencing.

In simpler terms, the penalties and the suspensions will be doubled. In many situations, an experienced attorney will be able to have one of these charges, either the DWI or Refusal conviction dropped. However, if the driver forces the court to have a trial, and if the BAC readings are high, then a Municipal Court almost always imposes two consecutive sentences, 7 months for the DWI and 7 months for the refusal charge. The total aggregate sentence will be a 14-month license suspension.

In summary, a driver faces a lengthy license suspension, double fines, and double surcharges if he has a trial and if he is convicted of both charges. I have never seen a case wherein a driver has beaten both the DWI charge and the Refusal charge in one trial.

How can a DWI driver avoid jail time if he is convicted?

A Municipal Court judge in most cases does not want to sentence a DWI driver to jail if he is convicted. In many counties the local jails have all types of community service programs that can be served in lieu of jail terms. In Northern Jersey, the counties of Union and Essex have SLAP programs. These programs permit the driver to serve his time by doing community service, instead of jail time.

In Ocean and Somerset Counties a convicted DWI driver can serve his time on the weekends, and then be released during the week. In Middlesex County the county jail will permit the driver to be released during the day and then go to work. However, at night the driver must return to the jail. In Monmouth County the county jail has a wristlet program. The convicted DWI driver will have to wear a wristlet monitoring bracelet. The driver will be subject to home confinement. During the day, the driver has to go the county jail and perform community service. In Middlesex County a convicted DWI driver can serve his time by performing community service. The driver will have to make this application to the court. If the driver is accepted, then he will have to report to the Middlesex County Workhouse on weekends for work duty.

If a driver loses his New Jersey license can he still obtain a license in another state?

I have had many clients who try to apply for a driver’s licenses in other states before they plead guilty to the New Jersey DWI charge. Sometimes, there is a glitch in the computer system(s) and the sister state will issue a driver’s license to the New Jersey driver. In most states before anyone can be issued a driver’s license, he is asked if he is suspended in any other states. A driver commits fraud if he lies and make misrepresentations on his application. There are glitches in DMV computer systems. Many times a DWI driver can pull off obtaining another license in another state. However, after 9/11 security has increased tremendously. If the DWI driver is busted for this type of fraud, then he must be prepared to also accept a harsh punishment.

What are the surcharges for a driver if he is convicted of DWI?

A driver will receive a $1,000 a year surcharge for three years if he is convicted of a DWI. A driver can pay these surcharges at the monthly rate of $83 per month for 36 months.

Can a court issue a convicted DWI driver a temporary license only to be used for work?

No. There are no conditional licenses in New Jersey, even if the driver is only going to drive to work. A conditional work license has never existed in New Jersey, and it never will.

What if the police officer does not appear for trial, can I win the case by default?

In most cases, the court will adjourn the case if the police officer does not show up for a DWI trial. A good defense lawyer will then ask the court to make the next court session as “try or dismiss.” This means that at the next court date, the case will be dismissed if the police officer does not appear.

What are the odds of a person “beating” a DWI charge in New Jersey?

The plain truth is that “beating” a DWI charge is extremely difficult. There is a tremendous amount of politics that are involved with DWI cases. Moreover, there is a tremendous amount of pressure on the municipal courts to convict DWI defendants. A DWI driver has all of the constitutional guaranties of having a trial. However, there are no jury trials in DWI cases. This translates into a much lower percentage of winning DWI cases.

The old breathalyzer machines are now being phased out. The old breathalyzer machines are called the Breathalyzer Model 900 and 900A. These machines are very old, and they are no longer being manufactured. These breathalyzer machines are repaired by “cannibalizing” parts from discarded machines. The old machines are very complicated to use. A police officer must use a 15-step checklist to use the 900 and 900A Breathalyzer Model. Moreover, these machines do not provide a printout of the breath test results. Finally, the results of the 900 and 900A Breathalyzer Models rely entirely on the operator’s ability to correctly conduct the breath tests.

A new breath test machine called the Alcotest 7110 is now being phased in. This new breath machine is essentially the “Terminator” of breath machines. A police officer only has to turn the machine on and advise the DWI driver to blow into the machine. The police officer also does not have to follow any 15 step checklist to conduct the breath tests.

In summary, the Alcotest 7110 is going to destroy more than half of the available DWI defenses. Because of this, the major issue in most DWI cases is only going to be on sentencing issues. It is getting harder and harder to beat DWI cases. The new Alcotest 7110 machine is going to drastically reduce a DWI driver’s chances of beating a DWI charge.

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