New Jersey Drunk Driving (DWI DUI) Myths
1.
A Drunk Driving charge - DWI - is not
that serious; it is just another
traffic ticket.
False.
Many years ago, New Jersey Courts did not regard a DWI charge as a
“serious” violation. This view has dramatically changed. Defenses
have become hammered down and limited by New Jersey Courts, Judges are
bound to impose minimum (mandatory) sentences, and Prosecutors cannot
not “plea bargain” a DWI charge.
The
penalties, set forth in N.J.S.A. 39:4-50, vary depending on whether you
have previously been convicted of DWI and
the proven
BAC
reading as follows:
A.
FIRST OFFENSE –
BAC
OF .08%
AND
UNDER .10% OR “UNDER THE INFLUENCE.”
FINE: $250.00 to $400.00.
INCARCERATION: "not less than 12 hours nor more than 48 hours spent
during two consecutive days of not less than six hours each day and
served . . . [at] the Intoxicated
Driver Resource Center . . . and, in the discretion of the Court, a term
of imprisonment of not more than 30 days."
LOSS OF LICENSE:
Three Months.
NEW
JERSEY
DMV SURCHARGE:
$1,000 per year for three years.
OTHER FINES & COSTS: $200.00 DWI
Enforcement Fund, $50.00 Violent Crime Compensation Board Fund, $75.00
Safe Neighborhood Fund, 200.00 NJ MVC
Restoration Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC)
Fee(s) (Additional fees for out-patient counseling as referred by the IDRC),
and up to $33.00 in Court Costs.
B.
FIRST OFFENSE –
BAC
OF .10% OR MORE OR UNDER THE INFLUENCE OF DRUGS.
FINE:
$300.00 to $500.00.
INCARCERATION:
"not less than 12 hours nor more than 48 hours spent during two
consecutive days of not less than six hours each day and served . . .
[at] the Intoxicated Driver
Resource Center . . . and, in the discretion of the Court, a term of
imprisonment of not more than 30 days."
LOSS
OF LICENSE: Seven Months to
One Year.
IGNITION
INTERLOCK DEVICE: In the Court’s
discretion, six months to one year following restoration. This is a
device installed on a car that prevents operation if, when blown into,
registers a predetermined blood alcohol concentration.
OTHER
FINES & COSTS: $200.00 DWI Enforcement
Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe
Neighborhood Fund, 200.00 NJ MVC Restoration
Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC)
Fee(s) (Additional fees for out-patient counseling as referred by the IDRC),
and up to $33.00 in Court Costs.
B.
SECOND OFFENSE:
FINE:
$500.00 to $1,000.
COMMUNITY
SERVICE: 30 Days.
INCARCERATION:
"imprisonment for a term of not less than 48 consecutive hours,
which shall not be suspended or served on probation, nor more than 90
days . . ."
LOSS
OF LICENSE: Two Years.
NEW
JERSEY
DMV SURCHARGE: $1,000 per year for three years.
IGNITION
INTERLOCK DEVICE: In the Court’s
discretion, for one to three years following restoration. This is a
device installed on a car that prevents operation if, when blown into,
registers a predetermined blood alcohol concentration.
REVOCATION
OF REGISTRATION: For two years. The
Court must either revoke the registration certificates or require the
installation of an Interlock Device (above).
OTHER
FINES & COSTS: $200.00 DWI Enforcement
Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe
Neighborhood Fund, 200.00 NJ MVC Restoration
Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC)
Fee(s) (Additional fees for out-patient counseling as referred by the IDRC),
and up to $33.00 in Court Costs.
C.
THIRD OFFENSE:
FINE:
$1,000.
INCARCERATION:
"imprisonment for a term of not less than 180 days .
."
LOSS
OF LICENSE: Ten Years.
NEW
JERSEY
DMV SURCHARGE: $1,000.00 per year for three years unless the conviction
happened within three years of the last one in which case the surcharge
is $1,500.00 per year for three years.
IGNITION
INTERLOCK DEVICE: In the Court’s
discretion, for one to three years following restoration. This is a
device installed on a car that prevents operation if, when blown into,
registers a predetermined blood alcohol concentration.
REVOCATION
OF REGISTRATION: For ten years. The
Court must either revoke the registration certificates or require the
installation of an Interlock Device (above).
OTHER
FINES & COSTS: $200.00 DWI Enforcement
Fund, $50.00 Violent Crime Compensation Board Fund, $75.00 Safe
Neighborhood Fund, 200.00 NJ MVC Restoration
Charge(s), $150.00 Intoxicated Driver Resource Center (IDRC)
Fee(s) (Additional fees for out-patient counseling as referred by the IDRC),
and up to $33.00 in Court Costs.
2.
New Jersey
permits a restricted driver’s
licenses to go back and forth to work for someone who is
convicted of DWI.
False.
The revocation of your driver's license in
New Jersey
is mandatory for the prescribed period(s). There are no exceptions in
New Jersey Law which would provide for a
limited license for work or otherwise.
3.
There are no defenses to a DWI charge?
False.
While defenses have diminished in
New Jersey
in the past decade, a DWI charge is not
tantamount to an automatic conviction.
At
the outset, it is important to remember the old adage: "innocent
until proven guilty." The State (i.e., the Prosecutor and Police)
has the ultimate constitutional burden to prove guilt beyond a
reasonable doubt; a defendant does not have to prove innocence.
Procedurally,
the Prosecutor is also obliged, among other things, to supply the
defense with every relevant document and all relevant information in the
State’s possession (the “State’s Possession” here referring to
the Police, State Agencies, and State Employees) related to the charge(s).
This is called “discovery”, sometimes referred to (in other States)
as “pre-trial disclosure.” The State must also see to it that a
defendant is given a fair and speedy trial consistent with the
United States
and New Jersey Constitutions (Here the State also refers to the Court
itself). These are among several important constitutional safeguards
which, if neglected by the State, may provide defense issues.
Since
New Jersey Law provides that a .08% blood alcohol reading along is
sufficient to sustain a conviction, any defense where such a reading is
alleged must focus on the reliability and validity of the reading(s)
(i.e., was the breath machine operated properly, and was the machine
operating properly). If the machine was either not operating properly,
or was not operated properly by a qualified technician, it is possible
to exclude the test results from evidence or to challenge the veracity
of the reading(s).
Each
case must be carefully and thoroughly analyzed and
assessed by experienced and competent counsel and expert consultants in
the field of breath testing to screen for possible deficiencies in the
operation of the breathalyzer machine and the reliability of the
reading(s).
Assuming
that the breath test results can be excluded
or compromised, the State may still seek to gain a conviction on what is
commonly called "observation" evidence (that you were
"under the influence"). The Police Officer(s) will generally
testify regarding observations both before and after your arrest (e.g.,
flushed face, bloodshot eyes, slurred speech, odor of alcohol on breath,
leaning on the car for support, etc.). The Officer(s) will also testify
regarding your performance on Field Sobriety Tests (FSTs)
(e.g., heel to toe, finger to nose, one leg stand, recitation of the
alphabet, etc.).
There
may be a variety of factors which could have
caused the observations and poor performance on the FSTs,
each having nothing to do with the consumption of alcohol. Further, the
National Highway Traffic and Safety Administration recognizes only three
Field Sobriety Tests as reliable scientific indicia of intoxication, and
only when these three (3) tests are properly
administered and interpreted. Like the breath testing, the
observation evidence must be carefully and
thoroughly analyzed and assessed by experienced and competent counsel
and expert consultants in the area of field sobriety testing to screen
for possible deficiencies.
A
qualified DWI defense attorney can review
the substantive evidence which the State has
to prove their charges. He can also assure that the procedures are in
accord with Constitutional safeguards and if not, address defense issues
in that regard. There are no magic defenses to this very vexing charge.
The terms “technicalities” and “loopholes” are simply incorrect
characterizations to define defenses in a DWI
case as well as in any criminal proceeding. Rather, any defense issue
should be regarded as issue which are only
raised because the State either failed to establish guilt, or because
the process was not in accord with a defendant’s constitutional
rights.
It
is the Constitution and the safeguards paramount in it,
that will form the basis of any successful defense. There are
defenses to a DWI. A qualified and
experienced attorney can compel production and ferret through the
relevant information in the State’s possession. He can also press the
Prosecution to establish their burden of proof and assure that
constitutional safeguards in place to assure for a fair trial and
procedure are adhered to.
4.
There is a difference between DWI and DUI?
False.
DWI is an acronym for Driving While
Intoxicated. DUI is an acronym for Driving Under The Influence. In
New Jersey
, the law makes no distinction between DWI
and DUI.
5.
A DWI charge can simply be "plea
bargained" to a lesser charge.
False.
The New Jersey Supreme Court has instructed Municipal Courts that No
plea agreements whatsoever are allowed in drunk
driving offenses. Further, there are no first time
or other diversionary programs available to defendants. In rare cases, a
Prosecutor may however, dismiss a DWI charge
where the State is convinced they will not be able to prove the offense
beyond a reasonable doubt.
6.
DWI charges will be decided by a trial by jury?
False.
No. There is no right to a Jury Trial for DWI
offenses in
New Jersey
. Trials are presided over by Municipal Court Judges who hear the
evidence and decide both the factual disputes and legal issues.
7.
If Miranda "rights" (e.g. “you have a right to remain
silent”, etc.) were not read, a DWI case
will be dismissed on a technicality.
False.
Police are not required to advise you of your "Miranda" Rights
(including your right to remain silent) during roadside interrogation.
Being taken into custody is what triggers Miranda warnings to be given.
The failure of Miranda warnings is simply this: Any statements made
without an adequate warning, or without a knowing, intelligent and
voluntary waiver of the rights may be subject to being
suppressed (i.e. excluded).
8.
A conviction in
New Jersey
for DWI
will have no effect on an out of state driver’s license.
False.
New Jersey Courts only have jurisdiction (i.e., authority) over your
driving privileges in
New Jersey
. A New Jersey DWI conviction will, however,
be shared with the State where you are
licensed. Thereafter, that State generally can take action against your
driving privileges there independent of what happened in
New Jersey
.
9.
There is nothing an Attorney can do to defend a DWI
charge.
False.
DWI in
New Jersey
has become extremely complex, the laws have become tightened, and a
conviction carries with it very harsh consequences. There are no
guarantees that an attorney, even if qualified and experienced, will be
able to successfully defend you. However, a
qualified
and experienced attorney can carefully review your case for
substantive and procedural defects, request and compel discovery of
breath machine records and relevant police records and reports from the
Police and Prosecution, consult with and retain expert witnesses where
appropriate, and prepare your case for trial.
Call
on New Jersey
DWI lawyer, Greggory M. Marootian when you need
experienced
professionals to give you the facts, and restore your integrity.
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