Written By:Adam H. Rosenblum
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Drunk driving—also known as driving under the influence (DUI) or driving while intoxicated (DWI)—is one of the most serious traffic offenses for drivers in New Jersey. In addition to possible jail time, a conviction for drunk driving can impact insurance rates, employment, and many other aspects of a person’s life.
Under N.J.S.A. 39:4-50, a driver found with a blood alcohol content (BAC) of 0.08% or greater can be charged with DWI/DUI. The penalty depends on a variety of factors, including whether it is a first or repeat offense, past traffic convictions, how far the BAC exceeds the legal limit, and circumstances the led to that charge (e.g. accident vs. traffic stop).
Penalties and Fines
- Jail time: A first conviction for DUI in NJ means potentially spending up to 30 days in jail. A second conviction within 10 years can mean up to 90 days in jail and a third can lead to up to 180 days in jail.
- IDRC: In addition to jail time, a judge can order a driver to spend between 12 and 48 hours in an Intoxicated Driver Resource Center.
- License suspension: For a first DUI conviction, drivers can lose their license for up to six months, depending on their BAC. A second conviction means a possible suspension of up to two years. A third conviction can mean losing one’s license for up to 8 years.
- Fine: Drivers face a fine of $250 to $400 for a first DUI offense. Drivers with a BAC of more than 0.10 can be fined between $300 and $500. A second offense, regardless of BAC, comes with a fine of $500 to $1,000. A third offense carries a fine of $1,000.
- Surcharge: New Jersey charges a surcharge of $1,000 each year for three years upon conviction for DUI ($3,000 total). The same surcharge applies upon a second conviction. A third means a surcharge of $1,500 per year for three years ($4,500).
- Other fees: Drivers can also face over $500 in fees associated with a DUI conviction, including contributions to the Safe Neighborhood Services Fund (SNSF), Drunk Driving Enforcement Fund (DDEF), and the Alcohol Education and Rehabilitation Fund (AERF).
- Surcharge $1,000/year for 3 years
DUI Fines & Fees Table
|First Offense (0.08 to 0.10)||First Offense (0.10+)||Second Offense||Third Offense|
|Jail time||30 days||30 days||90 days||180 days|
|IDRC||12 to 48 hours||12 to 48 hours||12 to 48 hours||12 to 48 hours|
|Ignition Interlock Device||3 months||7 months to 1 year||2 to 4 years after end of suspension||2 to 4 years after end of suspension|
|Suspension||No suspension||No suspension (unless under influence of narcotics)||1 to 2 years||10 years|
|Fine||$250 – $400||$300 – $500||$500 – $1,000||$1,000|
|Surcharge||$1,000/year for 3 years||$1,000/year for 3 years||$1,000/year for 3 years||$1,000/year for 3 years|
|Total Fines & Fees||$3,755 – $3,905||$3,805 – $4,005||$4,005 – $4,505||$4,505+|
Case Law Analysis
The Superior Court of New Jersey examined the factors a sentencing court should consider when deciding whether or not to send a DUI offender to jail in State v. Henry, 14 A.3d 750 (2010). Here, the defendant appealed a 60-day jail sentence (30 days of which was suspended conditional upon attendance at a treatment program) for second-offense DUI. The defendant argued that the sentencing court’s consideration of his unusually high blood-alcohol concentration (BAC) was impermissible since a high BAC was an element of the offense. This argument would, if accepted, establish that the court had “double-counted” the BAC. The Superior Court rejected his argument. They found that while a high BAC is an element of the offense, the state must only establish a BAC of 0.08. Any amount beyond that can properly be considered aggravating. The court also found that aggravating and mitigating circumstances specified in the Criminal Code (N.J.S.A. 2C:44-1) to determine whether or not to impose incarceration should also be applied to DUI cases. These factors include: The presence or absence of a criminal record A youthful offender substantially influenced by an older, more mature person to commit the offense A willingness to cooperate with authorities While there are many other considerations, courts may consider all of the relevant factors found in that section when deciding whether to send a DUI offender to jail. In this case, the court found that the presence of significant mitigating factors justified a probationary sentence and allowed the appeal.
In State v. Luthe, 892 A.2d 736 (2006) the Appellate Division of the Superior Court of New Jersey considered whether a defendant could avoid the mandatory sentence of 180 days imprisonment by relying on apparent sentencing disparities between counties in New Jersey. The defendant presented evidence that 14 out of 21 counties allowed three-time DUI offenders to serve part of their sentence on various work-release programs. She argued that the failure of the sentencing judge to consider the same punishment was a violation of her right to equal protection. The court noted that the practice identified by the defendant was inconsistent with the sentencing statute as amended by “Michael’s Law.” The court also found that, even if the evidence presented by the defendant were true, the sentencing disparity here would exist for an “entirely rational basis.” In sum, the court found that the mandatory minimum sentence for an offender’s third DUI could not be avoided simply because other counties were allowing for unlawful sentences.
State v. Hrycak, 877 A.2d 1209 (2005) confirmed that an uncounseled conviction cannot count as a prior conviction. In this case, the defendant had been convicted of her third DUI offense. However, she argued on appeal that her sentence of 90 days in jail and 90 days community service should be reduced to accord with the maximum sentence available for a second offense because her first DUI conviction was entered without the benefit of counsel. The court considered some new (at the time) Supreme Court of the United States jurisprudence and found that it did not disturb its previous finding that an uncounseled conviction could not be used for the purpose of the step-up provisions of the DUI legislation. The court reaffirmed that in order to establish that a prior conviction was uncounseled, the defendant must prove that:
- As a threshold matter, that they did not receive the right to counsel in the previous case
- If that threshold is cleared, the defendant must meet one of the following criteria:
- If the defendant was indigent at the time, that the conviction was the product of an absence of notice of the right to counsel
- If the defendant was not indigent at the time, that the conviction was the product of an absence of knowledge of the right to counsel, and the resulting failure to obtain counsel had an impact on the guilt or innocence of the accused.
State v. Schreiber, 122 N.J. 579 (1991) involved a defendant in a single-vehicle accident. The defendant’s physician voluntarily disclosed to police the blood alcohol concentration results of blood tests performed on the defendant. The State sought to admit these results as evidence in the trial and it survived a motion to suppress. The municipal court convicted. Her appeal de novo resulted in the same outcome. The Appellate Division, however, reversed the conviction of DUI as they found the blood test results should have been suppressed because of patient-physician privilege. The Supreme Court of New Jersey reversed the Appellate Division judgment and reinstated the conviction. That court found that, because of the wording of the privilege statute, patient-physician privilege did not apply in the case of motor vehicle offenses. In any event, the police, in this case, did not ask for the results; the doctor voluntarily provided them.
How NJ Police Identify DUI Drivers
New Jersey police look for specific driving habits and behaviors when determining when to pull someone over under suspicion of drunk driving. The behavior does not have to violate a specific traffic law. For example, he or she may pull over a driver who hesitates before passing through a green light, or who is going unusually slow on otherwise clear roads. Police may also stop cars that drift from side to side within a lane.
Once a driver has been pulled over, the officer will observe his/her behavior to determine whether he or she has been drinking. The officer could attempt to smell alcohol on one’s breath or look for redness in the eyes.
If any of those signs arouse further suspicions, the officer may ask the driver to submit to some field sobriety tests. These tests can include the following challenges:
- Walking in a straight line with the heel of one foot touching the toe of the other, turning, and repeating
- Watching a moving object using only the eyes and keeping the head still
- Keeping arms to the side while standing on one foot
Drivers who fail these tests can be placed under arrest for DUI. Many officers also ask drivers to submit to a breathalyzer test. If the breathalyzer test determines the driver is above the legal limit, he/she will be charged with a per se violation of New Jersey DUI laws.
Refusing a Breathalyzer Test
Refusing to take a breathalyzer test is a serious offense and can have severe consequences regardless of whether or not one is convicted of DUI. This can include a license suspension of up to one year, a fine of $300 to $500, and the required installation of an ignition interlock device.
How NJ Police Identify Drivers Under the Influence of Drugs
While the presence of alcohol in one’s body can be easily tested at the time of a traffic stop or arrest, determining whether a person is under the influence of drugs (DWI drug) is a more difficult matter. There are many different kinds of drugs that can affect a person’s ability to drive and the exact effects can vary.
In New Jersey, a driver who is suspected of DWI-drug will be taken to the police station where he/she will be examined by a Drug Recognition Expert (DRE). This specially trained officer will then administer a 12-step evaluation, which includes looking a pupils, examining muscle tone, basic vital signs. Some of the more common field sobriety tests may also be used.
Drivers under the age of 21 are held to a higher standard than those who are legally able to drink. A person under 21 cannot have any trace of alcohol (0.01% BAC) in their bloodstream. Underage drivers with a BAC less than 0.08% will face a lesser charge commonly referred to as a Baby DUI.
This name is misleading! An underage DUI is serious and can result in a license suspension of up to 90 days, community service, and mandatory participation in a rehabilitation program. Drivers with a BAC of more than 0.08% will face the full penalties of a DUI regardless of age. Read More
How a NJ DUI Affects Out-of-State Drivers
Living outside the state does not shield one from the impact of a DWI conviction in New Jersey. The Garden State is one of many states that participate in information-sharing agreements such as the Driver’s License Compact. This agreement means that any time New Jersey convicts an out-of-state driver of a traffic violation—no matter how small—it is communicated to other member states, who in turn agree to record the offense. Even if one’s home state does not participate in the compact, the NJMVC is still likely to reach out and attempt to communicate the conviction.
While New Jersey cannot suspend an out-of-state driver’s license, it can suspend someone’s right to drive within NJ state limits. Moreover, most compact participants reserve the right to suspend a person’s license upon conviction of an offense in another state that would have warranted a suspension at home. In other words, a New Yorker convicted of DWI in New Jersey could have his/her license suspended by the NY DMV despite the conviction taking place across state lines.
Frequently Asked Questions
No. New Jersey considers driving while intoxicated to be a traffic violation. A conviction does not mean having a criminal record. However, it can lead to jail time and a host of other penalties. In addition, a DWI can show up on employment background checks, which means it can have a similar negative effect as having a criminal record.
This is a bad idea for two reasons. First, NJ police do not need a breathalyzer to charge a person with drunk driving; an officer’s observations of the driver’s behavior are sufficient evidence to potentially convict. Second, refusing a breathalyzer carries its own serious consequences regardless of whether or not one is convicted of drunk driving as explained above.
Not necessarily. It is not always easy for a person to tell how alcohol is affecting them. Just because someone feels in control of their actions does not mean that their actions aren’t delayed or their speech isn’t slurred. Moreover, one’s “tolerance” for alcohol has little bearing on their BAC level, which is determined solely by the amount of alcohol present in the bloodstream.
In most cases NJ courts do not accept plea deals on DWI/DUI cases. This means a person must either beat the charge (which will require the help of an attorney) or plead guilty. However, in special cases a plea bargain may be possible and in any event some of the penalties may be negotiable which is why it’s important to have a skilled attorney by your side, among other reasons.
It depends on the details of the case, including the circumstances surrounding the arrest, the driver’s BAC, past driving history, and more. It can even depend on the judge and the prosecutor involved. An attorney can help evaluate all of these details to determine the best course of action.
It’s unlikely. There is a lot of advice on the internet on how to beat drunk driving charges, but most of it is written by amateurs with little or no legal experience. In addition, the experience of standing before a judge and answering questions from a prosecutor can be intimidating. A person also may come to make admissions of guilt and not even realize it. A skilled NJ traffic ticket attorney will know what to do, what to say, and how to say it. More so, an experienced attorney will not be fazed by a judge or prosecutor’s questioning and is likely to anticipate a number of questions based on past cases.
No. New Jersey considers DWI a traffic offense, not a crime. Therefore, it cannot be segregated from the driving record. In addition, all traffic offenses remain on one’s driving record for life. That means a single conviction can haunt a person 10, 20, even 50 years later!
Drivers who do not or cannot pay the fines, fees and surcharges associated with a DWI conviction in NJ can have their license suspended indefinitely. In addition, a person could have their wages garnished or find themselves facing a lien on their property. More importantly, an arrest warrant can be issued.
Who Should I Contact?
If you or a loved one has been charged with DUI or any criminal offense in New Jersey, contact an attorney for help. The lawyers at Rosenblum Law are skilled criminal defense attorneys with experience helping people prove their innocence (in a DUI case, DWI case or otherwise) and protect their rights. Email Rosenblum Law or call 888-815-3694 today for a free consultation about your case.
How to Cite Rosenblum Law’s Article
Adam H. Rosenblum (Jan 23, 2019). DUI & DWI Lawyer in New Jersey. Rosenblum Law Firm, https://rosenblumlaw.com/our-services/criminal-defense/dwi-in-new-jersey/
Adam H. Rosenblum "DUI & DWI Lawyer in New Jersey". Rosenblum Law Firm, Jan 23, 2019. https://rosenblumlaw.com/our-services/criminal-defense/dwi-in-new-jersey/