Answers to New Jersey DWI Questions

 

 
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Question: Is it true that the breath analyzer must be administered twice, and results be in a narrow margin for it to be used?

Answer: The “Breathalyzer”, used in New Jersey, must be administered two times within fifteen minutes, with samples within .01 of one another — the lowest of the two reading is used for proof purposes.”

This was ruled incorrect if NJ firmware 3.11 is used by the New Jersey high court; it ruled in State v. Jane H. Chun, et al. the 4 tests, two per blow, must be within . 0.005 percent BAC from the mean or plus or minus five percent of the mean whichever is higher. The state must prepare “Worksheet A” for a two blow test.

The court stated;

“To the extent that Firmware version 3.11 took advantage of an explanation of the tolerance range in Foley that inadvertently doubled the permissible range, however, it cannot be sustained. We therefore direct that for future firmware revisions, the device be programmed to fix the tolerance range to be plus or minus 0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater, in order to ensure scientifically accurate, admissible test results.”

Answer: Hi (again). The question was an older question involving the “breathalyzer” (a breath testing device that was used thorough New Jersey; the breathalyzer is now phased out). The answer was and is still is the correct state of the law with regard to that machine. The case you reference (State v. Chun) and the requisite tolerances deal with the “Alcotest”, the new breath test device in use in New Jersey.

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Question: You mention a refusal is not considered an offense for sentencing according to State v. DiSomma. This was overturned in STATE v. CIANCAGLINISTATE Argued Oct. 27, 2009. — January 07, 2010

Answer: Correct, when the question was asked in this forum, the state of the law provided that a prior nj refusal to submit conviction was not a prior under the nj dwi statute. The law has since changed so that a prior refusal conviction is a prior under the nj dwi statute. That ruling is however, under review by the NJ Supreme Court – so the law can shift again.

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Question: My cousin who is 21 from pa got stopped in new jersey for speeding 21 miles over the limit in a rental car….. as he conducted all test for the officer correctly (I video recorded it) he got arrested and his bac was .12 after 9 times of the test……what’s the penalty for first offense and also can the recording be evidence in court? Thanks

Answer: Good Morning. You can access the penalties through my NJ DWI FAQ Page here:http://www.newjerseydwi.com/dwi-faqs.htm. The video from the patrol car, and from the station (if one exists) can be used as evidence by the prosecutor or the defense.—–

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Question: In your experience, have you ever been able to reduce the license suspension on a first offense with the BAC being .12? Is the amount of time the license is suspended something that the judge is able to reduce, if they were so inclined?

Answer: Good Afternoon. If the .12% reading comes into evidence (or if there is a guilty plea which concedes the reading), the license suspension would be for a minimum period of 7-months. I have, however, been able to get that license period reduced for clients when I have been able to exclude the Alcotest readings out of evidence. In those cases, I have been able to keep the license loss down to 90-days. So, in order to accomplish the lesser license loss (90-days), a successful challenge to the breath readings is necessary.

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Question: If a person had a prior conviction as a minor under NJSA 39:4-50.14, would this count as a first time should he be charged later on under NJSA 39:4-50 as an adult? Thus my concern is whether one would be treated as a 1st or 2nd time offender in NJ for this new charge.
Thank you.

Answer: While there is no specific law on the issue (and thus the issue is open to interpretation by Courts), I believe that a prior offense for driving a vehicle underage (under 21) with a BAC of .01% or more is NOT a prior offense under the DWI laws. Based on the analogous law in this area, and a reading of both statutes (4-50 and 4-40.14), I have successfully advocated on behalf of my clients, that the underage drinking & driving statute is not a prior.

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Question: My son was in a car accident in New Jersey where no one was injured. The car was totalled and there was some minor damage to property ( a tree and small stone wall). He was taken to the hospital where they drew his blood. He is 19 and his blood alcohol reading was .02. His blood was further sent to the state for testing. He is being charged with DWI, this is his first offense.

My questions are:
(1) Is DWI a crime or a misdemeanor?
(2) Did they have the right to take his blood without his consent ?
(3) Did they have the right to send it on to the state for testing
without his consent?
(4) If consent was given while he did not have the mental capacity to
do so, would that consent still hold?
(5) Why was he charged with DWI and not DUI?

Answer: Hi. DWI in New Jersey is classified as a traffic offense. As such, it is not a crime or misdemeanor. The police have a right to take blood as long as they have a good faith belief that the defendant is driving while impaired. This is known as probable cause. They likewise have a right to send the blood to the laboratory for analysis.

Lastlyn DWI and DUI are the same thing in New Jersey.

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Question: Last night my son was pulled over for a headlight being out. He had had a beer just before leaving the party. The officer smelled this on his breath and told him to get out of the car. There was no problem with his driving and he passed the in field test. He was instructed, not requested to do a field test. He was taken back to the station for the breath test which came out to 0.08. The other officers in the station were ready to just send him home because he exhibited no signs if intoxication, but the arresting officer would not let up. My son has a clean record. I read that there are problems with the breath test if someone has had a drink within 30-60 minutes of the test because of residual alcohol in the mouth and throat. Can they convict on the breath test alone or does there have to be other signs of intoxication? Can other officers be subpoenaed. Is there any chance to beat a dwi in NJ? Thank you fro any help.

Answer: Hi. In answer to your questions, (1) residual mouth alcohol will adversely impact a breath reading “Alcotest”); however, procedurally in New Jersey, the Alcotest Operator is trained to wait twenty minutes from the last injection of alcohol before administering a test – that is the time that it takes for the mouth alcohol to dissipate, (2) the State can convict with either a valid breath reading of .08% or higher, or observations showing impairment; however, in order to arrest and require breath samples, the police must have a reasonable basis to believe the defendant was driving while intoxicated (known as “probable cause”), (3) the officers can be subpoenaed, but the State has the burden to prove their case, and they will need the officers more so than the defense in most cases, and lastly, (4) there are defenses to a DWI charge.

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Question: My husband received a dui in NJ some time around 1983-4. We non longer live in N.J. moved in 1987 but recently he was contacted by a collection agency saying he owes over $4,000. He had paid the fine back then and certainly has not retained any of the documents to support this. Can N.J. now come after him?

Answer: Yes, NJ can seek to collect the surcharge by entering an official “judgment” on record in NJ. That judgment can be enforced in your home state (e.g. wage garnishments, bank levies, etc.). The judgment can also have an adverse impact on your husband’s credit.

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Question: Does New Jersey have an ARD program?

Answer: ARD is an acronym for “Accelerated Rehabilitative Disposition.” This is a diversionary program available in Pennsylvania. New Jersey does not have a diversionary program for DWI offenses. For other charges, there are diversionary programs for first time offenders (e.g. certain drug charges in Municipal Court (“conditional discharge”) and some offenses in the Superior Court (Pre Trial Intervention). However, currently there are no such programs for DWI offenders.

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Question: I have a questions my sister has two dui in pa didn’t go to court yet for the second in pa…she goes in jan for that. Now she got another in phillipsburg, nj is that going to count as third or two in pa and one in nj. THanks for your help.

Answer: The Court will look at a defendant’s driving history, and look specifically at convictions only in determining the sentence.

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Question: My brother recently got a DWI (.08) when he was driving home from dinner and did have 1 beer with his food. A state trooper flew up on him making him nervous , as he tried to move over noticed he couldn’t because of another car next to him. As soon as he did this the lights when on. He was told he swerved and could have cause an accident. He was asked to take test over and over until they saw something wrong. However they told him to hold 1 leg up and count unless told to stop. He did this and when he got to 30 he put his leg down and was told to get on the hood.

Now back at the barracks was held for an hour while the fine boys tried to get the breathalyzer to work.Was then driven to another Barracks to use the test there. Finally took the test and it came up 0.08. Does he have a chance of getting this thrown out? Thank you so much.

Answer: It is impossible to adequately assess the case against your brother without reviewing all of the police reports, records, and videotape. The procedure that follows a NJ DWI charge is contained here:

http://www.newjerseydwi.com/procedure.htm Generally, the one field sobriety test given to your brother is known as the One-Leg-Stand (test). It is a standardized field sobriety test, meaning it should be administered with a standardized set of instructions using standardized clues to assess performance. If the test is not administered properly, the test results are, according to the National Highway Traffic Safety Administration, compromised. With regard to the alleged .08% breath reading, the State has the burden to show by clear and convincing evidence that the Alcotest machine was operating properly and operated in accordance with accepted procedure. These issues generally would have to be thoroughly reviewed by a competent New Jersey DWI Lawyer to properly assess the case.—–

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Question: My boyfriend was arrested for a dui in New Jersey. He claims his car was stolen at the bar, when he went out to find it he found it crashed on the curb. the police officer found him and claimed he was the one that crashed it. To make a long story short. the officer never saw him behind the wheel, never read him his rights, gave him one breath test, and ignored him when he told him he had caps on his teeth. The officer claimed he had powder discharge from the airbag on him. We called the car dealership and found out that model of car’s airbags have no powder in them? His lawyer claims he can get the dui eliminated from evidence but so far has not even requested the video tapes of the test from that night. in fact he wants my bf to request them. he hasn’t even tried to defend the fact that he wasn’t behind the wheel or the airbag info. My question is, is this lawyer doing his job correctly, can he get the test eliminated if performed incorrectly, and what does this mean for my boyfriend? Thank you so much.

Answer: Hi. First, procedurally, the State (in effect, the Police, through the Municipal Prosecutor) have an obligation to turn over relevant reports, records, and other materials (including videotapes) to the defense. This procedure is referred to as pre-trial “discovery.” The practice is for defense counsel to request, compel, and obtain (on his client’s behalf) the production of the videotape(s). The State has the burden to establish the element of “operation” (of the motor vehicle) beyond a reasonable doubt to obtain a conviction for DWI in New Jersey. It might be that given what is before your boyfriend’s lawyer, the evidence in that regard is weak. Without seeing the file, it is impossible for me to assess the issue. For a thorough and scholarly discussion on the issue of operation in the context of a New Jersey DWI case, see this link:http://www.njdwidefense.com/nj-vs-mize.htm I am not going to criticize his lawyer because I do not know the entire history, and jumping to that conclusion would not be fair. As far as the Alcotest, the State has the burden to show that the test was administered properly – i.e. consistent with proper operating procedure. There might be other defense issues – such as the “caps” that may create defenses. Again, without seeing the file, it is impossible for me to give you tailored guidance. I think your boyfriend should sit down with his lawyer, and go through all of his concerns.

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Question: “I was arrested almost 3 yrs ago for a DWI and when I went to court I was one of the many people who heard that the breath test was invalid and that they were looking over the tests to see if it was valid. This happened to a bunch of people here in NJ. Anyway, I requested a “STAY” on my license until the tests results were cleared up. I paid my fine, went to the class and now it’s almost 3 years later and they are calling me back to court to suspend my license for 7 months. I havent even gotten so much as pulled over since that day. Is this something I can fight to keep my license? Even though I was never suspended yet I could have served my suspention time 4 times already. Any input would be helpful.”

Answer: You have a right to fight the license suspension. It is incumbent upon the defendant to raise possible issues. That is to say, the defendant (through counsel) must make the court aware of the Alcotest (the new breath machine) defects/issues. One has to review the reports and records and assess the State’s case to determine whether there are any defects. So, whether there are any issues depends on a review of the State’s evidence. But, unless the issues are raised before the Court, the Judge has no obligation to conduct an independent review of the matter.

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Question: I have convicted as DUI/DWI in NJ in June 2007, apart from this I got two more tickets (Reckless Driving, Unlicensed driving) I paid all the fines and took IRDC classes in NJ. My question is Now I am applying a job in (CMM level big company) PA state, Now they are going for Background and criminal check, will it be effected on my employment? Reply soon

Answer: Hi. This is a common concern for people who are facing a NJ DWI charge or who have been convicted of DWI. I cannot say for certain whether the DWI conviction will have an adverse affect on your employment because I do not know what your employer is looking for and what their criteria are. However, a DWI in New Jersey is not a “crime” – it is a traffic violation. The DWI should not show up on a “criminal background check.” The DWI will however, show up on your motor vehicle history.

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Question: “does the police need my consent to take a blood test? I did not want it and asked for breath instead. The officer said he had probable cause and need no consent from me so he brought me to the hospital and 4 people held me down to draw it is this ok for them to do? They said that the probable cause was that i had a head injury and he said i was unable to walk, aFTER ALL I WAS PULLED OVER FOR SPEEDING AND NOT INVOLVED IN AN ACCIDENT and was never asked what happened to my head why i had a cut so he just took me away assuming i feel. Was that good enough for them to force the blood out of me.. please answer”

Answer: The police do not need consent for a blood draw. However, they need to have “probable cause.” That means they have to have a good faith and reasonable belief in guilt to draw blood. The taking of blood is in effect a search and seizure that the constitution says must be predicated on a good faith belief in guilt. In your case, the issue has to be presented to a judge by way of a motion to suppress. That means that the judge will have to assess whether the police had a reasonable basis to believe you were guilty based on the limited indicia you note. Most Courts will give the police some latitude in these cases. The cops cannot be expected to conduct roadside tests on someone who is injured. However, you do not state whether there was other indicia like bloodshot / watery eyes, smell of alcoholic beverage. I do however, note that speeding is not a common driving pattern of someone who is drunk see:

http://www.nhtsa.dot.gov/people/injury/alcohol/dwi/dwihtml/guide.htm_

(http://www.nhtsa.dot.gov/people/injury/alcohol/dwi/dwihtml/guide.htm)

One would however, have to review the file carefully to give you a more tailored and accurate assessment.

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Question: “I just got my 3rd offense and was not given a feild test due to probable cause so they say, I had a cut on my eye that was from an injury way before i was pulled over for speeding. so the officer states that as his probable cause. so they take blood in which i was refusing cause i wanted a feild sobriety or breathe test but they held me down and drew the blood. Was that right to do? I was taken to the hospital due to an injury that the officer never asked what it was from does that throw out his probable cause? my blood alcohol results were analyzed 9 days after whats the chain of custody procedure? should i know how my blood was handled from the time of drawing to were it went each day etc.?”

Answer: Blood cannot be taken by force – such would be illegal (unconstitutional) and the blood cannot be used at trial. The issue must be presented to the Court by way of a motion to suppress. The State should turn over chain of custody documents to the defense as part of pretrial discovery. However, a nine day delay for the State to conduct the analysis is not unusual, and frankly, nine days is a fats turn around.

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Question: “Is a conviction of ‘baby dwi’ uderage DWI a prior conviction for sentence purposes?”

Answer: The so-called “baby dwi” a/k/a/ a “kiddy-dwi” (underage drinking while driving) is not a prior offense for purposes of the dwi statute.

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Question: “what is the difference between a regular (an adult) and one for an underage dwi in new jersey? Is it true that all records for underage dwi are confidential? are there any benifits to recieving an underage dwi as oppossed to being charged as adult?”

Answer: NJS 39:4-50, the NJ DWI statute prohibits driving while intoxicated or with a blood alcohol concentration of .08% or more. NJS 39:4-50.14 prohibits a person who is under the legal age for buying alcohol from driving with a blood alcohol concentration of .01% or more. The threshold for a conviction under NJS 39:4-50.14 is much lower than for DWI. A conviction under 39:4-50.14 would be preferable, given a choice, over a DWI conviction. The records are not however, confidential.

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Question: If a person got his first DWI 12 years ago, then another one 5 years ago, and another one six months ago, what would the last one be? His second or third offence? If his first offence was over 10 years ago does this mean his latest is still counted as his second offence? Thank you for your help.

Answer: This would be a 3rd. The law currently is that a ten-year gap between offenses steps down the offense one level. The gap however, is the gap between the current nj dwi offense and the one immediately prior. Therefore, where a the gap between 2nd and 3rd offenses is less than 10-years, it would be a 3rd dwi (offense). This is even though the 1st offense is over ten-years old.

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Question: Does the State of New Jersey offer hardship drivers license (for work purposes) to those convicted of their 1st offense Of DUI/DWI?

Answer: No.

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Question: When a person is caught driving while their license is suspended due to a DUI, is it considered a traffic violation or a criminal offense?

Answer: A traffic violation under N.J.S. 30:3-40.

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Question: My daughter had a DWI in NJ over 12 years ago. She never received notice of a court date, license suspension, etc. She does hold a Va. license. She has just moved to Arizona and was told that because of the DWI in 1993 they will not issue her an Arizona license. She did not even know it was revoked. She has not had another DWI since and her driving record is clean.  Is there a statute of limitations in NJ for DWI, and if not, what would she have to do to get this cleared up?

Answer: The “statute of limitations” refers to time periods for tickets to be issued. Currently, a dwi charge must issue within 90 days of the alleged offense. The time limit was 30 days.

This time limitation is distinguishable from the time limit that a case must be concluded. That time period generally falls into the category of “speedy trial” right(s). Every Defendant has a constitutional guarantee of a speedy trial. Whether there has been a violation will hinge on an analysis and weighing of four factors: (1) length of the delay, (2) reason for the delay, (3) whether the defendant asserted the right to a speedy trial, and (4) prejudice.

The case at this point should be placed back on the Court’s calendar. This is usually done by posting bail with the Court. Your daughter’s counsel can and should examine the entire case and defenses, including the speedy trial issue(s). But, I suspect that the Court will show that notice was sent to your daughter thereby negating the speedy trial defense.

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Question: My first DWI was in 1983, my second was in 1996, and my third was in 2005. My second offense was counted as a first offense since it was over 10 years. Should my most recent offense have been counted as a third offense?

Answer: The Court will look to the gap between the 3rd and 2nd. If, as it appears in your case, the time from offense to offense is less than 10 years, you are treated as a 3rd.

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Question: I got a DWI in Michigan 4 years ago, which was reduced to open intox. I just got a DWI two days ago in New Jersey. Will having two DWI’s in a five year period assure loss of license and/or jailtime?

Answer: The prior offense in Michigan will be regarded as a prior DWI in NJ if the Michigan offense is substantially similar to NJ DWI Law. Therefore, it would be necessary to investigate the precise law that you plead guilty to in Michigan (what you refer to as “open intox.”) If the law there provides penalties for any level of alcohol and does not require impairment, then it would not count as a prior. If it is a prior and you are convicted or pled guilty in NJ, the penalty is a 2 to 90 day jail sentence and 2 year license loss.

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Question: My brother is charged with a 3rd DUI in New Jersey. It has been 9 years between the 2nd and 3rd. His breathalyzer tests came out as .07,.10 and .10. He is going to trial as it has been postponed a few times and the state postponed it twice. They have been trying to get it down to reckless driving since there is saporstein report involved and the police officer was incorrect with the breathalyzer. They were using the old system, there was video camera either. Is there a 60 day rule to settle this?

Answer: There is not a 60-day “rule” of law that requires dwi charges to be heard (in 60 days). There is, however, a 60-day guideline that courts attempt to adhere to. However, it is not uncommon, particularly in contested cases, to have cases go beyond the 60-day mark.

Each Defendant does, however, have a constitutional right to a “speedy trial.” Whether that right has been violated depends on a weighing and balancing of four factors: (1) assertion of the right, (2) reasons for the delay(s), (3) length of the delay(s), and (4) prejudice to the defendant.

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Question: I JUST GOT MY THIRD DWI IN NEW JERSEY, BUT I REFUSED BREATH TEST THIS TIME. I’M MARRIED AND HAVE 2 KIDS. MY WIFE DOESN’T WORK ACTUALLY SHE SUFFERS FROM MULTIPLE SCLEROSES. I CAN’T AFFORD A GOOD ATTORNEY. WHAT ARE MY CHANCES WITH A PUBLIC ATTORNEY? CAN I AVOID JAIL TIME?AND WHAT HAPPENS IF I DON’T APPEAR IN COURT? THANK YOU VERY MUCH!

Answer: If you are convicted of dwi as a third offender, New Jersey law provides for a 180-day jail term. That jail term can be reduced by a maximum of 90-days with an IDRC approved in-patient rehabilitation program. The balance of the term (90 days) must be jail – or, in some cases, a jail alternative such as an anklet program, or house arrest. The jail can also be avoided if the prior convictions can be attacked (i.e., vacated).

Public defenders often get a bad rap. Many are qualified and devoted to what they do. As far as chances, dwi charges are not easy – your chances obviously are better however, with competent counsel. If you fail to appear in Court, the Judge will issue a warrant for your arrest. Good luck as you try to navigate through what sounds like a stressful situation for you and your family.

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Question: I work for the federal courts, and we were wondering if a person has a sixth conviction for DWI, are the penalties the same as for a third offense, and can all 180 days be served in an inpatient facility or only 90 of those days?

Thank you for your assistance in this matter.

Answer: The Statute (N.J.S.A. 39:4-50) provides for penalties for a “third or subsequent violation” – thus, a 6th offender is treated within the same parameters as a 3rd. If the violation occurred after January 20, 2004, the 180 day jail term can be lowered “not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center.”

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Question: I need to know if someone gets a DWI and this is their third but the oldest was over 10 years ago (first 4/95, second 6/98 & third 4/05)- would this still be treated as a 3rd offense or would it be treated as a 2nd offense?

Please let me know right away. Thank you!

Answer: his would be treated as a 3rd DWI in New Jersey. The Court looks at the gap between the 3rd and 2nd – because the gap here is less than 10 years, it is a 3rd. If your 2nd NJ DWI was more than 10 years from the 3rd, you would be stepped down to a 2nd NJ DWI offender.

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Question: In 1984 my one in-law was arrested for dwi in nj. He let his license go. Now he wants his license and dmv told him it cost him over four thousand dollars. Is this true?

Answer: The New Jersey Motor Vehicle Commission (NJMVC), formerly the New Jersey Division of Motor Vehicles (DMV) appears to have assessed him with a surcharge – $1,000.00 per year for three years as a result of the nj dwi conviction. The overage would appear to be interest. That was and is authorized.

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Question: I am wondering if a first time DWI offense is considered a criminal offense or a traffic violation in the state o NJ? I heard it was only considered a motor vehicle offense. Also, if it is considered a motor vehicle offense and not a crime, does the law make a distinction as to whether this offense is a major or minor traffic offense?

Answer: A charge of NJ DWI and/or a NJ DWI conviction is regarded as a motor vehicle violation. There are no specific grades of motor vehicle offenses in New Jersey contained in the Statute(s). However, given the option(s) of “major” or “minor”, a NJ DWI is definitely best be classified as a “major” (as opposed to a “minor”) traffic offense. Further, at least one high court in New Jersey, in passing, called a NJ DWI charge a “serious traffic offense.”

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Question: “Is it true that if I am given a ticket for a DWI in New Jersey, the cops have to bring me to court within 90 days of the ticket? I heard a rumor that after 90 days the court can’t do anything.”

Answer: Incorrect – there is no hard and fast time limit by which a NJ DWI charge must be concluded. A Defendant does however, have a constitutional right to a “speedy trial” in connection with a NJ DWI charge. Whether that right is violated requires weighing and balancing four factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) any prejudice occasioned by the delay.

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Question: “My son just confided that he was pulled over for DWI in July of 2003. His first offense was in 1995. He paid all the fines attached with the first offense and received his license back. He did not have his license when he was pulled over for the second offense (it was not suspended – he just didn’t pay for the renewal). He did not show up for court for this second offense. How does he start the process to handle this and what is he looking at in terms of fines and penalities? Will this be considered his 2nd offense for sentencing purposes?”

Answer: If convicted of nj dwi (as a second offender which he would be considered), your son is facing a mandatory 2 year license loss and 2 to 90 day jail sentence. He provably has an arrest warrant for him that needs to be vacated (by posting bail). Then, the case can be placed back on the active trial calendar. This is not a very unfamiliar situation (failure to appear) for experienced counsel to negotiate.

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Question: “I was pulled over and charged with DWI a few months ago. At the police station they gave me a breathalizer test and I heard the officer say that I had a .06 I asked several times for copies of everything but never received any of it. I am now going to trial and asked for discovery. The police report filed is full of lies and they changed my BAC to .11 My question is is there any way to obtain the original test results or is it just my word against theirs.”

Answer: Sometimes there is a videotape – the “original” test results must be recorded by the breath operator. There is no permanent printout on the archaic breathalyzer machine. If you asked for the results at the time and were not given them, you have a good argument to exclude the readings since you have a statutory right to the test results when you ask.

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Question: “Can a person be charged with a DWI, if he is drinkin inside his vehicle. Additional facts:The car was turn off; He was drinking on his “private property.”

Answer: The State must prove that the defendant operated or intended to operate the vehicle.

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Question: “if 90 day jail time is mandatory in NJ for second DWI, does this need to be done all at once or can the guilty party do this jail time on weekends?”

Answer: The jail sentence for a 2nd nj dwi offense is 2 days mandatory up to 90 days (jail). The 2 days can, in the discretion of the court, be served in the intoxicated driver;s resource center (overnight). Some counties allow the jail sentence to be served on weekends.

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Question: “I was drinking at a friends party one night. My car was parked several feet down the road on the other side of the road. While talking to a friend in the front yard I glanced towards my car and it appeared to have a flat tire. I walked down to my car opened the door to get a flashlight out of my glove box to look at the tire and the police pulled up behind me to see if I needed any help. I told them I was at my friends house down the street, my tire looked flat and I was trying to check it out. While we were talking they could smell the alcohol. They had me walk in a straight line, etc. I was then arrested for DUI. My question is how can I be arrested for driving under the influence when I wasn’t even in the car when they pulled behind my parked car. The car was not running and there were no keys in the ignition? Please respond to Thank you. ”

Answer: The State must prove “operation” of the car beyond a reasonable doubt. The law allows them to prove it by proof of intent to operate or an inference of past operation (while intoxicated). The cops can charge and arrest on any facts – but they have the burden to prove a basis for the arrest and the ultimate charge. In this case, given the facts you describe, the State will have a difficult time proving operation.

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Question: “My first DWI in NJ was 14 years ago, I just was arrested for a DWI again, does the new one count as a second or is it a first since the first one was so long ago?”

Answer: This would be a first offense for sentencing purposes if you are convicted or plead guilty.

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Question: I received DWI recently and was taken to the station. When I asked the officer what my BAC was he said I “doubled”. He also mailed me a reckless driving ticket a week later. I got pulled over for a tailight, not for erratic driving. I cooperated completely with the officer and was not being difficult at all. I’m assuming that i will have a loss of liscense for at least 6 months. Is there any way to get that reduced, i.e. to 3 months? Is there any way to get these charges reduced? How much can I trust the lawyer? How can I tell the difference between a good DWI and a can of paint with all the lawyers out there?Please Respond.

Answer: The current law in New Jersey is this if convicted of a first dwi offense – driving with a blood alcohol concentration of .10% or more, license loss of 7 months to 1 year. If the State is unable to establish the integrity of the breath or blood readings and if the other observations are sufficient to show that you were under the influence – a 90 days license loss. It is hard to say whether in your case it is possible to get the sentence reduced to 90 days – this would require a careful analysis of the written records and reports on file, called “discovery.” As far as you being able to gauge a lawyer’s ability and expertise see my tips on hiring a lawyer for your nj dwi case.

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Question: Can you be arrested for DWI in NJ without having road side test done?

Answer: Yes – but the State has the burden to show that there was a sufficient basis to have arrested you for nj dwi – called “probable cause.”

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Question: I know the NJ limit was reduced to .08 in Jan/04. Is that in effect now? I heard that it was to go into effect in July/04.

Answer: It has been in effect since January 21, 2004.

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Question: “does nj have a program that allows a person whom drives for a company that will allow him to drive during working hours only.”

Answer: No.

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Question: “I was driving home friday after work the officer pulled me over for a headlight that was out asked me to do the standard tests then took me in and gave me a breathylyzer which said i was .08% this is my first offense i have a clean driving record, I also hold an out of state license, Florida. what are my chance of this getting dropped to a lesser charge, Is there a possibility to pay a heavier fine do community service in lieu of the dwi charge. any advice would be greatly appreciated.”

Answer: The so called “legal limit” in New Jersey was recently reduced to .08%. Getting DWI charges “dropped to ,,, lesser charge[s]” is something that the State will do if they are convinced they cannot sustain their burden of proof. The “chances” of that happening depend on many factors – including reviewing the reports and records on file. But, you should know that DWI charges are not routinely reduced (like other charges). They are dismissed or reduced in rare cases where the State is unable to sustain their burden of proof.

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Question: “what is the time limit for nj dwi records”

Answer: A nj dwi conviction remains part your driving history permanently.

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Question: “Here is a question that someone asked me, and frankly I couldn’t give him an answer. He asked if someone was riding a bicycle under the influence…could that person be charged for a DWI just as if they were driving a car?”

Answer: In State v. Machuzak, 227 N.J. Super. 279 (Law Div. 1988), the Court (Somerset County) held that the DWI Statute (NJSA 394-50) clearly did not apply to non-motorized bicycles. A Cumberland Superior Court also held that the Statute was not applicable – see State v. Johnson, 203 N.J. Super. 436 (Law Div. 1985). However, in State v. Tehan, 190 N.J. Super. 348 (Law Div. 1982), a Court (in Somerset County) found that a bicyclist could be found guilty of DWI, although the license revocation could not be imposed.

Until a higher Court in New Jersey rules on the issue, technically, the issue is unfortunately, not clearly answered. Where as here, there are conflicting Law Division Decisions (the Courts above the lower Municipal Courts), the issue is technically regarded as unresolved, although the Machuzak and Johnson decisions appear better-reasoned that the Tehan ruling.

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Question: “I am applying for a job and need to be able to prove that a first offense DWI is a misdemeanor. The statutes are difficult to interpret. Can you direct me to a statute that designates a DWI as a misdemeanor? Thank you!”

Answer: This is a common question. A conviction for nj dwi is a motor vehicle offense – not even a misdemeanor. It falls under Title 39 of nj laws – all motor vehicle offenses.

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Question: I was just arrested for DWI. I got a talked to a lawyer and he said “well when we go to court i can probably get the court to throw out the speeding and careless driving tickets but the dwi one will stay…however i may be able to get them to drop your .10 blood level to .08 and have your license suspended for lonly 3 months instead of 6 months” My question is…is this true could he get me a 3 month loss of license instead of 6? I got pulled over in a 55 doing 65 in like another 2 hundred yards the limit goies up to 65…i passed my abc’s and walking a straight line…i put my foot down twice holdning it in the air…any info on this 3 month loss would be great…please emial me i need help.

Answer: Yes, nj dwi law changed on January 20, 2004. The legal limit was reduced to .08%. The penalties for driving with a .08% up to .099 include a 90 day license loss. For a .10% or more, the license loss is 7 months. So, it is possible that if a .10% or more reading is compromised, the license loss would be limited to 90 days.

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Question: “I was driving to the emergency room due to pain I was having in my shoulder before leaving for the hospital I had taken a muscle relaxer called SOMA. En route to the ER I blacked out and hit a telephone pole when police arrived I was not coherent (had shoulder surgery 2 months prior) The officer escorted me to the ER never told me I was being charged with a DWI but did ask if i would take a blood test I said yes not thinking I did anything wrong. 3 hours later when my mom got there he told me I had been in custody the entire time. My rights were never read to me. How can you be charged with a DWI for a legal drug and shouldn’t someone inform you that you are under arrest?”

Answer: New Jersey DWI law prohibits driving while under the influence of certain drugs (e.g., narcotics) even if they were prescribed. The fact that the cop never told you that you were under arrest is a non-issue. The failure to read your rights does not void the dwi charge (this is a common question). The only effect is that if you gave any statements in response to questioning, those statements might be excluded from evidence (like an answer that you just consumed the drugs).The real issue in these cases is usually whether the state can prove a nexus between the drugs and your symptoms.

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Question: “I had two dwi’s in nj over 25 years ago, I was just given a summons for my 3rd does that count as 3 or back to 1 again”

Answer: This dwi would be a second if you were convicted or plead guilty.

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Question: “Iwas pulled over at the airport (port authority) 2 years ago and was charged with a NJ DUI. I did not take the breath test. I also never went to court. I know I need to clear this up. What am I up againist??”

Answer: You most probably have a warrant outstanding for your arrest and you nj driving privileges should be indefinitely suspended. The process is to rescind the warrant (usually by posting bail) and have the case re-listed. A knowledgeable nj municipal court lawyer should know how to accomplish this. If you had no prior refusal or dwi convictions, you are facing 6 months to 1 year license loss for the dwi and 6 months on the refusal – among other penalties.

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Question: “I got convicted of DUI about a two months ago and then when driving one night about two weeks ago got pulled over and issued a Driving While Suspended. I have checked the penalties but just wanted to see wha discretion the Judge would have. I don’t know if my person situation would have any affect but just to add to the details here they are.

Prior to my DUI I have had a clean license for over 10 years.

I just went through a divorce and literally lost everything. My Family, My house, and my money. Despite making almost 200K last year I am filing for Bancruptcy and due to all these circumstances I have been in a deep depression. I would not allow myself to admit this but after this ticket I know I must seek professional psychological help.

Again, Just wondering does any of that matter or am I losing my license for an additional year and going to jail for 10 days?”

Answer: The license loss is between 1 to 2 years – so the Judge has some discretion there. The jail is 10 to 90 days so the Judge has some discretion there too. In some cases Judges can impose jail alternatives – it depends on the Judge and the Court. There may also be a way to win the case or get a plea bargained disposition to something other than what was charged – rare, but possible.

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Question: “How long will the DUI be accessible on my DMV record to potential employers and insurance carriers?”

Answer: The record of a conviction will remain a permanent part of your NJ driving history. There is currently no way to erase it. Most insurance companies will look back three years for rating purposes.

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Question: “Are there business permits or a hardship license in New Jersey for someone who has lossed their license but works 2 jobs, is solely responsible for a house, schoolage children, and an elderly parent but does not have reliable transportation to commute because there is not public transportation that runs 24 hrs a day,has a good route system and is affordable?”

Answer: No – currently, there are no limited licenses.

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Question: “is there such a thing as a restricted drivers license to go to work and school if u are convicted of a dwi?”

Answer: NO – not in New Jersey.

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Question: “I got two DWI’s when I was 17 years old in New Jersey. So I had two convictions there. When I was 21 I got a conviction in New York. New York treated it as a first conviction. However I just got a letter from the New Jersey DMV saying that my license has been suspended for the next ten years. I guess they’re treating it as my third conviction even though it happened out of state. THe New Jersey DMV didn’t mention anything about surcharges or jail time in their letter. Are they going to try give me more surcharges? Can they try to send me to jail when though I was already convicted in another state? Wouldn’t this be Double Jeopardy? They can’t charge sentence me for the same crime twice, can they? I look forward to your reply.”

Answer: NJ cannot seek jail time. However, the law allows them to seek a license revocation as well the surcharges for an out of state conviction which is similar to a nj dwi conviction. You should s/w counsel to see whether there are defenses to the proposed action – you have a right to an administrative hearing.

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Question: “I’ve recently moved from NJ to IL. I did not get a chance to get an IL driver’s license. With a NJ driver’s license, I was pulled over for DUI. If I get convicted in IL, what happens? What will NJ do?… I no longer reside in NJ…”

Answer: New Jersey will seek a 6 month license revocation (assuming this is your first offense), and impose yearly $1,000.00 surcharges.

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Question: “A third arrest. The second arrest was over ten years ago. What is the worst case senario/ best case senario?

Answer: Best Case – Not Guilty. Worst Case = second (nj dwi) offender status.

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Question: “Here is my dilemma: I was parked one day in a park with a girl. To cut it short. Cop found an open bottle of alcohol in vehicle that I WAS NOT DRINKING. It was in my house and I was give it to my friend because I wasn’t using it. Well they gave a $200 ticket for an open bottle of alcohol. I paid it. I tried to rent a vehicle and I was not allowed because I have a DUI on my record. How?? not drinking nor breathalizer….can I fight that?

Answer: When you paid the ticket, you plead guilty to the charge. The procedure to fight the charge now involves applying to the court to vacate (withdraw) your guilty plea. There are two sections that the State could have charged you with – either consuming the alcohol in the car (NJS 39:4-51a) or simply possessing an open container (NJS 39:4-51b). These are not DWI convictions – you need to confer with legal counsel to review the matter further and assess your options. There are time constraints in filing motions to vacate with the court – therefore, you should consult counsel without delay who can give you more detail about your rights and time limits.

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Question: “I recently received a ticket for not have my car registered. Which was fair considering I was 10 days late in doing so. I was also charged because I did not have my license or insurance card on me. Both are up to date. My questions is do you have 24 hours to provide the paper work on insurance and license. I was told I would have to show up on the court date, and that the charge was that I did not have them on me at the time (Statute No 39:3-29). So it does not seem to matter whether or not I have the information now or not. Will I receive any points for this. Thank You”

Answer: There should be no effect on your insurance for a violation of simply failing to possess a document (39:3-29). There is no law to the effect that you can provide proper up-to-date credentials within 24 hours. If you do have up to date documents and were charged with for e.g. no insurance or no license, the charges can be amended by the state to simply not having them in your possession.

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Question: “I recently got a DWI in NJ and I am confused as to what is considered a first or second offense. First off, I am a NJ resident. I received a DUI in PA 1 1/2 years ago, although my BAC was .04 I was underage at the time. I went through the ARD program, promptly did all community service, paid absolutely all dues and have about 6 months remaining in non-reporting “probation” for this infraction. I am confused because I only lost my license in PA (Im a NJ resident), and I could drive in every other state…and NJ DMV was never informed, nor was my insurance company. Is that 1st offense in PA held against me in NJ court in regards to my recent offense in NJ? Will I be viewed as a 2nd offender or is my PA DUI not held against me in NJ? To add to this confusion, I recently got a Drivers License abstract and my license is 100% clean and in “good standing”. Does NJ not know about the incident in PA nearly 2 years ago?”

Answer: The ARD program generally provides that if you complete it, there is no conviction on your record. This is probably why the PA DUI did not carry over to NJ – because NJ will only recognize a conviction. Your attorney should check the final disposition papers in PA regarding the ARD to be sure.
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Question: “If someone is charged with DWI in another state, will s/he lose their license in New Jersey? The state in which this occurred does not mandate loss of license for a first offense.”

Answer: If the law is substantially similar to nj dwi law, the nj dmv will seek to impose a 6 month license revocation (assuming this is a first offense). The penalties in the convicting state are irrelevant.

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Question: “If you were convicted of a 2nd dwi and the judge did not give the community service would you still have to do it?”

Answer: No – the Judge’s Order (Sentence) is controlling. However, the State or even the Court on their own, can correct the sentence.

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Question: “I WAS READING THE PENALTIES FOR THIRD OFFENSE D.W.I. IN NEW JERSY. IT STATES NOT LESS THAN 180 DAYS IN JAIL. WHAT IS THE MAXIMUM TERM THAT COULD BE GIVEN. THE PERSON WAS STILL ON SUSPENSION FOR HIS SECOND AND GOT HIS THIRD & FOURTH IF THERE IS SUCH A THING.”

Answer: 180 days is the maximum term for a 3rd or more nj dwi offender. If, however, the offender is driving while suspended for a dwi, there is a 10 to 90 day jail sentence. If there are injuries or death, then the jail exposure of course increases.

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Question: “On Saturday morning coming back from a party I was on the highway and felt like I would throw up (I have GERD), I got off highway into town where I live pulled in and got out, got back in car and fell asleep, police came and after performing the sobriety tests was arrested for DWI, it was freezing cold and I had just woke up – does this give me any defense to failing? I was given the breath test twice they only told me one reading (.08) then the cop told me I had to give urine sample which I did. I was charged with DWI and reckless driving – will I be convicted on the dwi and can they insist on me having a urine test without written consent? Thank you. ”

Answer: Motorists are required to give samples of their breath, not urine or blood. If you gave the urine sample, you must have consented by your conduct. A written consent is not required. The cops asked for urine because they were looking for evidence of drugs in your system. The State will probably have impediments proving the dwi – even if there were drugs found in your urine (unless drug recognition tests were performed by a qualified expert). However, it is impossible to assess the state’s case against you without seeing all of the reports and doing a thorough investigation. A skilled and experienced dwi defense lawyer can carve up the state’s case – including using the issue of your being tired effecting the field tests.

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Question: “If you had your 1st nj dui in 1988, your 2nd dui in 1990, then one just recently 12/23/03. What offense would this be in court, and in the NJ DMV? 1st or 2nd offense in court? 1st or 2nd offense for DMV? 6 months or 2 years loss of license?”

Answer: Second offense under NJ Law – 2 year loss of license.

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Question: “Is there such a thing as having a NJ DWI expunged from the record?”

Answer: No – you cannot expunge a nj dwi conviction – it remains a permanent part of your New Jersey driving record.

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Question: “I have a question concerning New Jersey DWI. If a person received a NJ DWI charge is there anyway to get it expunged from their driving record? The DWI charge was on April 2, 1988 and is still present on the driving abstract. It would be most appreciated if you would reply to me. Please include if it is possible to get the charge expunged and the process one would need to go through to get it expunged. Thank you.”

Answer: There is no procedure to expunge a nj dwi conviction.

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Question: “My friend was arrested for a nj dui while I was in the passenger seat. He was in the drivers seat of my car and they have charged me with a NJ DWI because I allowed him to operate it. At the time of the arrest we were sitting in the car with the engine running, eating a couple of sandwiches. He failed the breathalyzer and field sobriety test. I however, was not administered any test and the police report barely acknowledges my existence. I did not plan on letting him drive the car he just was in the driver seat because his sandwich was made first and wanted to go to the car. What kind of case do I have, and what line of defense would be best?”

Answer: The question is not “what kind of case” you have. The primary defense inquiry is always what the State’s case is. The State has the burden to prove your guilt beyond a reasonable doubt. This is a burden which never shifts. Here, the State will have the burden to prove that you knowingly allowed your friend to operate the car while intoxicated, a difficult burden. If you have counsel, he/she should review the State’s evidence (reports and records on file) to better assess the State’s case and prepare a strategy.

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Question: “I had a clean driving record before my 1st offense nj dwi. Will that help with any leniency in punishment. Also, how likely is jail time for 1st nj dwi offenders? I would choose any fine or alternatives over jail time. I’m told its unlikely to get jail time on 1st dwi offense is that true?”

Answer: A clean driving record is considered by the court when sentencing. Absent some exasperating circumstance (usually an accident with injuries), it is highly unlikely that a court would impose a jail sentence for a first nj dwi offense.

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Question: “I was pulled over the other night (Nov 8th) The officer asked me for my drivers license and registration. Before I even got the documents out of the glovebox he told me to get out of the car. I got out of the vehicle where they directed me to the sidewalk. Before I even performed a field sobriety test he told my passengers to find a ride home because I was going to jail. Is this legal? The basically found me guilty (of nj dwi) before I even performed a road test or breathalyzer.

Answer: Police cannot arrest someone for dwi in New Jersey without having a reasonable and well-founded belief that the person is guilty – called “probable cause.”

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Question: “How much time does the court have to respond to a NJ DWI appeal, and if the court does not respond to your appeal does the case get discharged?”

Answer: Appeals from nj dwi convictions for are taken by the filing of an appeal within 20 days from the judgment. The Defendant is obliged to order and obtain transcripts of the proceedings and usually file a written argument called a brief. There is no specific time period for the court to hear the appeal – however, a defendant does have a right to a speedy trial.

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Question: My son was given a DUI eighteen months ago in PA. He entered the ARD program and had his driving privileges suspended for 15 months, 12 for the DUI and an extra 3 months for being underage. He has met all the ARD requirements and is about to get his driving privilege back and he has had his records expunged. In all this time he has had no notice from NJ about his license suspension here. He has not driven in NJ and let his NJ license expire until his PA suspension is lifted. We tried to get his driver abstract from a company on line but they told him that his license number is invalid and are giving his money back. What does this mean? He is going to renew his license as soon as he can. He goes to school out of state and hasn’t been home when the DMV is open. I spoke to an insurance agent about getting him his own policy and he told me that NJ can still take his license away. Why would NJ take this long to notify him? If NJ hasn’t gotten around to suspending his license until now can he fight it? I’m sure NJ is going to make him pay the 3 year surcharge but he has had no notice as to who and when to pay. Does this ever end?

Answer: I am not sure why he would have let his nj license expire. In any event, it may be that the diversionary program in PA did not report the matter to NJ because it did not result in a conviction. NJ will act on out of state convictions. The delay in being notified by nj dmv is not a defense to the action – that assumes that nj dmv will take any action at all.

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Question: “I have a couple of questions for you in regards to NJ DWI Laws and Surcharges. This is my 2nd DWI in NJ, on my 1st (1996) I didn’t have to pay the $1000 per 3 year insurance surcharge cause I proved I was an out of state driver (PA) when convicted. This time around I have to, WHY??????, in there booklet called WHO IS RESPONSIBLE which they send to you it clearly states “those responsible are persons who at the time of conviction hold a valid NJ license”. I see no reason for me to participant in there (NJ) insurance programs when I am not insured or licensed in that state, which I understand was set up to help licensed NJ drivers convicted of DUI or DWI or other traffic violations within NJ to obtain affordable insurance rates. So my question is how can NJ DMV change it rules to fit them when they see it fit to. Question 2, How can NJ DMV issue me a NJ drivers licenses number? If I am neither a resident nor a valid NJ Licensed driver, I am a resident of PA and already have a valid PA License number. To me this would mean that I have two valid licenses, one in PA and NJ, based on having 2 numbers, wouldn’t that be illegal to hold two licenses in 2 different states. Also NJ has put me on the NDR list and I can’t renew my PA license (my privilege to drive in NJ has been suspended not the whole country), plus the NJ surcharge and billing department has added an addition year to my suspension, which was court imposed at 2, but has now gone up to 3, DMV states until I payoff my surcharge off which would be in 3 years, that is how long I am suspended for. How can they add an additional year onto my suspension? Seems DMV can do what it likes and my rights as a driver and person have gone out the window. It also seems that the offices of DMV, the Court, and Surcharge division have no clue what the other is doing, the right hand has no clue what the left hand is doing?”

Answer: Based on a 2001 ruling (http://lawlibrary.rutgers.edu/decisions/appellate/a2892-99.opn.html), nj can surcharge out of state drivers convicted of nj dwi. NJ appears to have merely given you a license number for tracking purposes only. You can seek a payment plan for the surcharges and seek reinstatement of your privileges based on the payment plan being maintained.

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Question: “I was diagnosed with Bipolar illness in 2/00 when I was 30year old. I had this condition my whole life. My doctor informed me that I used drugs and alcohol to self medicate before I knew I was bipolar and medicated. Now I am under a doctor’s care and medicated. Things are much better. Before the medication I was not thinking logically and got a 4 NJ DWI arrests. It was clear I had a mental condition. I lost my drivers license and finding it extremely difficult to survive without it. It just adds to my depression. I live in very wooded area and public transportation is very limited. What I need to know is because I am a different person since the treatment and medication, is there any law that would enable me to drive again?”

Answer: New Jersey DWI Law does not allow legally imposed license revocations to be reduced even in compelling cases such as yours.

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Question: “Is a nj dwi dui a misdemeanor?”

Answer: A nj dwi dui conviction is a motor vehicle violation.

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Question: “I was in an accident in NJ, it was raining and the roads were wet, I struck a pole, and I left the scene of the accident and I found a police Officer, and I reported what I did. I was then questioned, I admitted that I had been drinking, I was handcuffed and taken to the police station and given a breathalyzer test. .13 is what it read. I have never gotten into any trouble with the law in my life. I am presently working my husband is not and I have a 13 year old child at home. My main question is what is the minimum time for me to lose my license?”

Answer: A first offense for nj dwi carries with it 6 months to 1 year loss of nj driving privileges. If you were charged with leaving the scene of an accident with property damage only (no personal injury), there is a 6 month mandatory loss of driving privileges.

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Question: “How will my nj dwi record stay on my insurance after my license in reinstated and will the points on my driving record ever disappear as a result of a good driving record here on in?”

Answer: A nj dwi conviction remains a permanent part of your NJ driving record. While there are no NJ DMV points associated with a nj dwi, there are insurance eligibility points. Most insurance companies will look back three years for purposes of insurance rate increases – a nj dwi will generally result in your having to buy insurance through the nj assigned risk plan.

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Question: “Is a New Jersey DUI – DWI Considered a Felony or Misdemeanor?”

Answer: A conviction for NJ DUI – DWI is neither – it is a motor vehicle violation.

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Question: “What ramifications are there when a father is picked up for drunken driving and illegal lane changing and his minor child is in the car with him?”

Answer: The State can charge, among other things, a separate offense of DWI with a minor present (There can be other criminal charges filed – but this would the most common in this fact pattern). This offense is classified as a disorderly person’s offense in New Jersey (some States refer to these offenses as misdemeanors). If convicted, the defendant is exposed to up to 6 months license loss, up to 5 days community service, up to $1,000.00 in fines, and 6 months jail.

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Question: “Is there A psychiatric defense for NJ DWI charge?”

Answer: NJ DWI is considered a “strict liability” offense. This means that culpability attaches regardless of the driver’s state of mind or intent. State of mind type defenses such as insanity have been stricken as invalid in the context of a NJ DWI charge.

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Question: “If you are a passenger of a drunk driver in new jersey and you yourself are also under the influence can you be fined as well should the drunk driver get pulled over?”

Answer: Only if the passenger is proven to have allowed the operation. Allowing a driver to operate drunk is a violation of nj dwi law.

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Question: “I got a nj dui in 1992,and never went to court in nj.I have been living out west ever since and can not obtain a drivers license. Is there a statute of limitations?”

Answer: The statute of limitations applies to when a charge can be filed – not concluded. In the case of a NJ DWI charge, the State currently has 90 days to file the charge (the law was 30 days – recently amended).

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Question: “is there a dawn till dusk license in New Jersey.”

Answer: No – the license revocation is absolute with no work or other special licenses.

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Question: “I would like to know if a NJ DWI is considered a criminal offense”

Answer: No – a NJ DWI charge is a motor vehicle violation.

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Question: “If a person was convicted of 3 dwi’s over 12 years ago. Then gets one after the 12 years what would he be sentenced as 1st or second or 3rd offence or 4 th offence?”

Answer: At best a third offender – which for sentencing purposes is the same as a fourth offender.

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Question: “is there a time limit on how long it takes to settle a dwi cass. When is it not a speedy trial.Can it be throne out or dissmissed?”

Answer: There is no specific time limit – however, the court will weigh and balance these factors in assessing a speedy trial argument: (1) the length of the delay, (2) prejudice to a defendant, (3) the reasons for the delay, and (4) whether the defendant asserted the delay. The defense must of course, push and advocate the issue.

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Question: “Can you please explain to me more on “speedy trial rights.” What are the exact time restrictions and what are the guidelines before a case is dismissed? Does it matter what the charges are and if there is a 2nd offense?”

Answer: A Defendant has a constitutional right to have a “speedy trial.” There is not an exact time period (e.g., 60 days, 90 days, 180 days, etc.) in New Jersey when a delay will trigger a violation of that right. Rather, Courts must weigh and balance four factors in assessing whether a speedy trial violation has occurred: (1) Prejudice to the defendant, (2) the reasons for the delay(s), (3) the length of the delay, and (4) whether the defendant asserted the right to a speedy trial. The issue is interesting and profound to argue.

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Question: “I actually have two questions. Could you still get a DWI if you decided to sleep in your car (e.g., in a parking lot) because you had too much to drink and your keys were “outside the car?”

I also heard about this but I am not sure if it is true: If someone with a previous DWI record was pulled over and given a breath test and the reading came up .05, they could be charged with a DWI because they already had one DWI on their record? ”

Answer: If the Defendant is in the car and had no intent to drive and there is no proof that the car was operated, the State would be unable to prove the element of the DWI offense. However, many Courts will (I believe incorrectly) view the mere presence behind the wheel of the car as sufficient proof of operation. The safest course is not to drive or even get in the car while intoxicated. The .05% BAC is not sufficient to prove a per se offense of DWI (i.e..10% BAC or more). However, the State can still charge a DWI on the theory that the Defendant was nonetheless “under the influence.”

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Question: “Regarding the refusal of the Breathalyzer test. I did refuse it. Because of this, am I subject to an automatic suspension of license, or do I have to wait until my court date to find out. Another question, if convicted of DWI and refusal, what are the “standard” consequences? In New Jersey. Thank You.”

Answer: No – the license revocation (for a first offense = 6 months) is imposed upon conviction or plea. The penalties for a first DWI offense are between 6 months to 1 year license loss, approximately $700.00 to $900.00 in fines and assessments, 12 hours of alcohol awareness classes, and up to 30 days jail.

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Question: “Is 3rd offense of DWI considered a felony?”

Answer: No – not in New Jersey.

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Question: “I was arrested last night with a level of .09. i have a court appearance scheduled for monday. #1 because the level is below the legal level, will the judge be more likely to let me off? #2 because i drive a school bus, am i subject to a lesser legal level even though i am in my car? thank you so much. ”

Answer: There are two ways the State can seek to convict for DWI; showing a blood alcohol concentration of .10% called a “per se” offense) or alternatively, observations showing under the influence. Obviously, the State cannot prove a per se offense. However, they can try to prosecute based on your general appearance and how you performed on the field tests.

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Question: “Last month I received a notice that was sent on June 26, 2003 to me by a municipal court in New Jersey to appear at the court on July 15, 2003 for traffic violations (violation codes are: a) 39:4-98.20; b) 39:6B-2; and c) 39:3-40) that all date back to July 9, 1996. Can you tell me whether a valid argument to make before the judge is that my right to a speedy trial has clearly been violated? The difference between the court date and the dates that the violations were issued is just over 7 years. How likely is it that the judge would grant my request to have the case dismissed for this reason? Also, what possible reason could there be for why it has taken so long for this case to be heard? In addition, despite how strongly I believe that I have fully paid all of the fines I was issued that relate to these traffic violations, can you also confirm that the burden of proof is held by the prosecutor? ”

Answer: To assess whether a speedy trial right has been denied, the Court weighs and balances (1) the length of the delay, (2) the reason for the delay, (3) prejudice to the defendant, and (4) assertion of the speedy trial right by the defendant. I do not know all of the facts – however, it would appear that a motion to dismiss on speedy trial grounds could and should be made.

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Question: “I have been convicted of a DWI in 1995, is this conviction considered a felony?”

Answer: In NJ, a DWI is not a felony or crime – it is a motor vehicle violation.

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Question: “I was charged with a DWI, and had a bac of .117.My license was revoked for 6 months.Prior to going to court I was able to obtain a NY state dl.Needless to say 8 days after losing my license I was pulled over.I gave the officer my NY license with my insurance and registration(girlfriends car).He told me my NJ license was currently revoked and asked me if I knew why.I played dumb,fearing that I would be arrested on the spot,and said that I don’t know why it would be revoked.Instead of arresting me the “officer’s”, at this point allowed me to pull of the road so I wouldn’t get towed and drove me to a phone so I could call for a ride.I was issued a ticket for driving while revoked and obstruction. What kind of trouble am I in for driving and also for lying to the Officer?Is there any way I can pay a bigger fine,community service,etc. instead of jailtime or an additional lose of license?

Answer: Many clients have tried and continue to try to obtain an out of state license to try and hide the fact that they are revoked in New Jersey. An out of state license does not negate the fact that you are suspended in New Jersey. A conviction for driving while revoked for a DWI carries with it a mandatory 10 to 90 day jail sentence and 1 to 2 year additional license loss. The “obstruction” charge is generally a “disorderly person’s” offense carrying with it up to $1,000.00 fine, and six months jail – although without seeing the charging document, I cannot precisely advise you on this offense as it could be improperly charged for example. I would suggest that hire competent counsel – but you probably know this. There may be defenses and if not, counsel can try and minimize the penalties with a jail alternative or other alternative disposition.

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Question: “can past convections be over turned if the breath test was done inproperly.”

Answer: Convictions can be attacked by going back into the convicting court and making an application to either vacate the guilty plea or challenge the trial. There are time limits in filing these applications (generally five years) – you should speak with an attorney and provide all of the facts to him/her to better assess your rights.

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Question: “I was arrested for dwi after a fight at my house with my girlfreinds daughters boy freind and i was injured dureing this fight was rendered unconcouse at this time i had been struct in the face with a glass candle and my nose was broken i was bleeding severly and had made it out of the house to my truck got in and tried to get to the hospital ihad dialed 911 befor this all started and got out of the house due to my girlfreinds violant temper when she drank igot in the truck and blacked out made a left turn and awoke going head on for a police car pulled over and waited for the officer to return at wich time he struck me knocking me to the ground anfd hand cuffing me later to find that my girlfreind had a warrant takein out on me for domestic violance and assault later on i was taken to the hospital and then to jail this happened in 11/2001 can i still appeal the decision of this judge and can i have the charge dismissed.”

Answer: A decision of a Municipal Court can be appealed. Appeals must be taken within twenty days of the final judgment. There are some limited exceptions such as where no notice was given regarding the appeal deadline.

There is also a procedure known as post conviction relief. Those applications must be filed in the Municipal Court within five years. The Court considers constitutional defects in your trial or plea.

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Question: “I will be going on the ARD program in PA….loosing my license for 30 days. I know I cannot drive in NJ for the 30 days. My question is will NJ take my license away for more than 30 days. How long does it usually take for me to get notice for the 1000.00 per year surcharge on my insurance? Will my expungement take place as soon as I complete the ard program and pay all fines, which I plan to do as soon as I am put on the program. I think my probation time is going to be 3-6 months.”

Answer: First, I am not a PA Attorney – I am licensed in NJ only. In any event, NJ DMV will take action against you upon a conviction. You should check the parameters of the ARD admittance – if there was not a conviction, NJ should not take action. If they do try and take action, it may be contested.

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Question: “What are the penalties for a third conviction if the first conviction took place more than 10 years ago. Did the law on this recently change. If you were arrested in October of 2001 and the laws changed in January 2003 and you do not go to trial until April of 2003 are you subject to new provisions and penalties of the law. ”

Answer: The law will look at the gap between the snd and third offense – the time of the first is not relevant. If the gap between the second and third is less than a year, the law treats the offense as a third. The recent law on the issue merely was a pronouncement of what the statutory law has been.

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Question: “Can the state of N.J. charge an out of state driver a surcharge for a D.U.I. If that driver had in his possesion a valid driver license from another state. And produced said license to the police at the time of their arrest. please reply a.s.a.p. ”

Answer: Yes.

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Question: “Police found me sleeping in my car wit the engine on and with a half bottle of liqour on the rear seat,that happened in a parking lot.two tickets were given to me one 39:4-50 and 39:4-51a.

Answer: OK – I am not sure what the question is. However, you are charged with DWI and consumption in a motor vehicle. Like all charges, the State has the burden of proof beyond a reasonable doubt. If you were sick, you would go to a doctor – you have a legal problem – you should hire an attorney.

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Question: “I will be going on the ard program for dui in PA and loosing my drivers license for 30 days I am a NJ licensed driver can I still drive in NJ? ”

Answer: No – if you are suspended out of state, NJ law regards you and being suspended here.

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Question: “In New Jersey will they allow a 1st time offender to have driving privliges during working hours?”

Answer: Common Question – the answer is, unfortunately, No.

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Question: “I was in a pretty serious accident 2 weeks ago. My passenger and I are ok, we were taken to the hospital, she was x rayed, I refused treatment. A trooper came into the hospital and said he found opened bottles in the vehicle and said I could either have blood taken there, or go with him to have a breathalizer test. I was not arrested, they took blood, but I don’t remember signing any forms for the bloodwork. I had a DWI in NY state in 1994, would this be considered my 1st offence because it’s in another state? I recieved 5 tickets for this, I was just hoping to get your input, thank you.”

Answer: The prior New York DWI in 1994 (as opposed to a DWAI) is generally considered a prior for sentencing purposes. I am always reluctant to advise people on this board to seek out counsel for fear that it will be viewed as my trying to generate a new client. However, my best advice for you is to retain counsel. You have a serious charge and exposure (given the accident and your NY prior). Further, blood draw DWI cases require a very detailed and thorough analysis by an experienced and competent DWI Defense Lawyer.

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Question: “If only one of my breathalyzer tests registered because of a preexisting asthmatic condition, am I still entitled to another test? What will the court do with one registered reading?”

Answer: The one reading, standing alone, is not evidential. The law requires two readings taken within 15 minutes of one another, with the lower of the two being used for proof purposes.

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Question: “If I refused breath test do I automatically lose my right to drive, or I do I lose it at court. This is in New Jersey thanks. ”

Answer: In New Jersey, until and unless you are convicted of refusing to submit to breath testing, the State cannot suspend your NJ license or NJ driving privileges.

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Question: “can i get a work license. I am about to lose my job”

Answer: No, there are no work or conditional licenses allowed in New Jersey. Upon a DWI conviction or plea, the Judge must take your license unconditionally for the prescribed period.

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Question: “Is the nystagmus gaze test admissible in court?”

Answer: The horizontal gaze nystagmus (HGN) test is not admissible to prove intoxication. Some Courts take the view (I believe incorrectly) that it can be used in conjunction with other field tests. Others take the view (which is questionable) that the HGN test can be used as a tool to asses probable cause to arrest.

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Question: “The owner of a restaurant called the police and reported I was leaving his establishment intoxicated. I only had 2 1/2 margaritas and I blew .14. Isn’t the owner wrong for doing this and do I have any defense at all?”

Answer: I would not say that the owner was “wrong” for calling – it was his right and perhaps even his legal duty to call the police. As far as your case, you must remember, the State has the burden to prove your guilt beyond a reasonable doubt. It is not up to you to prove a “defense” – rather, the State is obliged to prove the “offense”. Whether the State can do so would require a detailed analysis of the written reports and records on file, along with any other relevant materials in the State’s possession (called generally “discovery”).

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Question: “I was arrested for dui in november and my lawyer has pushed for a trial. I have never been in trouble in mylife and do not understand what is going on. Is it good to go to trial with a case like this? I had 5 beers in a 3 hr period and weigh 250pds. The officer arrested me because he was not convinced I wasn’t intoxicated even after I overheard him tell another officer at the scene that I seemed to be fine during the sobriety tests. The kicker was my bac results were a .14 and .15. My lawyer seems to be pushing the issue because of some medical problems I have such as gerd nd asthma. how much time am i facing for loss of license some of my friends who are cops are telling me they will cut a deal and i am probably looking at 30-90 days ???”

Answer: First and foremost, you are the client and as such, are entitled to be informed fully regarding the risks as well as the obvious rewards of a trial. You are also entitled to be made fully aware of the procedures involved in your case. If, as you put it, you do not “know what is going on”, I suggest that you open up communications with your lawyer. As far as the deal of 30-90 days, the State cannot plea-bargain a DWI charge – only dismiss or amend to a charge fitting with proofs where they are unable to prove their case. If you are underage, the underage alcohol consumption while driving law (which prohibits driving with BAC of.01% or more) provides for 30-90 day license loss. A standard DWI charge however, carries with it mandatory minimum loss of privileges starting with six months. Again, I would suggest that you reach out to your attorney and tell him your concerns for an appropriate response.

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Question: “After ten years is a dwi expunged, or can it be use against you as a second offense?”

Answer: There is no procedure whereby a DWI conviction can be “expunged” (i.e. eliminated) from a NJ DMV record. For sentencing purposes however (which I think is the thrust of your question), a 2nd offense occurring more than ten years after a 1st offense would be treated as a 1st offense for sentencing purposes.

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Question: “I have an outstanding speeding ticket in New Jersey from about 2 years ago? I lost it and expected to receive a court date like in Maryland yet I never received one? What do I do about it and can they raise my insurance in Maryland for a ticket in New Jersey??”

Answer: If you did not respond to the ticket by entering a not guilty plea (as directed on the ticket), the Court typically issues a failure to appear notice and arrest warrant. A Defendant can be expected to receive notice of the failure to appear which should have been mailed to the address on the ticket. If you know the Town where the ticket was issued, you should call that Towns’ Municipal Court Administrator. If not, you can contact NJ DMV or Maryland DMV. As far as the insurance question, this is a Maryland question which I am unable to answer.

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Question: “If I didn’t get charged the night I was pulled over could they later charge me.”

Answer: Yes, the Police have 90 days to charge DWI.

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Question: “I was convicted of DUI 6 years ago, since that time I paid all of my fines and surcharges, and did everything that I was required to do. I moved out of state since that time, I wonder if that old DUI is following me from state to state, although as I stated it has been satisfied. I live in CO and have had a squeaky clean record since that DUI, will that DUI follow me and dog my every step for the rest of my life? ”

Answer: A DWI conviction in NJ is permanently recorded with NJ DMV.

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Question: “What can be done if the officer does not offer you a breathalyzer test? I was read my rights but was never asked to submit a test, therefore, I was given a ticket for refusal to submit. Is there anything I can do regarding that. ”

Answer: The Police are required, among other things, to advise you of your obligations to provide breath samples and the consequences of your failing to do so. If they did not, the charge of refusing to submit to breath samples is not provable by the State. Defense Counsel can explore the issue more fully – you and your counsel need to enter not guilty pleas and explore the State’s case further.

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Question: “I plead guilty to a DWI in 1999. Is it considered a misdemeanor? ”

Answer: DWI in New Jersey is a motor vehicle offense in New Jersey, not a felony or disorderly persons offense.

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Question: “If convicted of a dwi or dui will i be able to drive while i am working. I am a sales rep and if I can not drive to my appointments I can’t do my job.”

Answer: No – there are no work or conditional licenses in New Jersey. The license revocation resulting from a DWI conviction is absolute.

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Question: “I had my license suspended for six months, does that mean 180 days or six months. does the mvd send my license back to me, or do i go to get them.”

Answer: 180 days – you have to go to a Regional NJ DMV to get the license reissued and pay DMV their restoration fee.

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Question: “If i admitted to an officer that I consumed a couple beers, am I automatically guilty or is it possible to fight the conviction and plea not guilty. Can you please answer–thank you. ”

Answer: No, you are not “automatically guilty” – I am assuming your post meant to say fight the charge as opposed to the conviction. The State must prove (assuming this is a DWI charge as opposed to underage consumption while driving) either a blood alcohol concentration of .10% or more, or that you were “under the influence” – defined generally as your mental and physical facilities being adversely affected. It is not illegal to consume alcohol and drive (again, assuming you are of legal age) – only to drive either under the influence or with a blood alcohol concentration of .10% or more.

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Question: “is it considered a felony offense”

Answer: No – DWI is not a felony in New Jersey – it is a motor vehicle offense

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Question: “I am a first time offender. I was stopped returning from a party. Although I didn’t feel at the time that 4 glasses of wine would have that much of an effect on me, I was wrong. I had visited a Docto that day who prescribed a medication for back pain. I underestimated the effect of mixing the 2 would have. I also did not understand at that time that I should have accepted the breathalyzer test. I did not take the test. I received a summons for DUI and refusal to take the test. Is there any hope for me? I really need my license to work, without it I don’t know what I will do.

Answer: First, if you are convicted of either of the charges (DWI or Refusal to Submit), the license revocation (180 days minimum) must be imposed by the Court. Further, the revocation is absolute – there are no work or conditional licenses. The DWI charge coupled with the Refusal charge is always an extreme challenge, although not hopeless – I have won combined DWI and Refusal to Submit cases. One would have to examine all of the facts of your particular case before properly assessing whether the State can meet their constitutional burden of proof on the charges.

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Question: “If I am convicted of a second offence, will the courts call my job and tell them?”

Answer: No, there is no reason, or legal reason for the Court to.

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Question: “If my husband comes home intoxicated and I witness him exiting the drivers side of the vehicle with his keys in is hand, can he be formally charged with dwi if the authorities are called? ”

Answer: Yes – the State can charge DWI; they ultimately have the burden of proving each element of their case beyond a reasonable doubt.

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Question: “I got a Dui in Md. which has a 60 day suspension for first offence. What will Nj do? Will I get 60 days or 6 mos? (Bac was 1.8) How long does it take before NJ contacts me? Is there a hearing? Offense was Nov. 10th. Thank you.

Answer: NJ DMV will send you a notice of proposed suspension advising you that unless you contest the action, they will suspend your NJ privileges for 180 days (assuming this is your 1st offense). If the DMV action goes into effect, you will also be subject to the NJ yearly surcharge, the conviction will go on your driving abstract, and your insurance rates will increase. Most times, a hearing is useless and in fact, DMV will simply deny many hearing requests based on the fact that there are no issues warranting a hearing. There may be issues here, but probably not – only with a thorough review of all of the facts, the court transcripts, and a review of MD law, can a definite assessment be made.

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Question: “In the case of a fatal accident of a pedestrian in NJ. Driver did not exhibit any signs of drinking, was not tested. Is it mandatory to test drivers in a fatal accident? The victim was tested in the hospital. Is that normal procedure? ”

Answer: The Police have to have cause to subject a driver to chemical breath testing or blood testing. As to the victim, I am not sure what type of tests you are referring to – blood tests, or an autopsy. The autopsy would entail an analysis of what was in the blood.

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Question: “I was recently convicted of a second DWI offense. The first offense was in 1995. I have not yet sought legal counsel, but plan to do so tomorrow. I am curious about a number of things: What questions should I ask? Is jail time mandatory? I read that you may be able to serve the sentence through the Intoxication Resource Detention Center. Can I lobby for this? Also, a police officer told me that I may want to use an out-of-state address for insurance purposes. Is that legal? Finally, the officer told me that a lawyer may be able to reduce the license suspension to 6-months or is 2 years likely regardless of the circumstance? Thank you.”

Answer: I assume you meant that you were “charged” with DWI, not “convicted.” There is a mandatory 48 hour jail sentence for a 2nd offense, up to 90 days. The Court can, in their discretion, allow you to spend 48 hours in the Intoxicated Driver’s Resource Center (IDRC) in lieu of jail. Using an out of state address for insurance is illegal. You cannot plea bargain a DWI charge or sentence. There may be issues whereby your sentence can be molded, but thinking that the sentence can be reduced routinely is foolhardy. Some cops, while well-intentioned, misstate the law – further, even though the process may have seemed quite cozy, once the cops charged you, they were and are basically, your accusers, not your protectors. Defense counsel is there to protect your interests in the system which is adversarial. You should seek DWI Defense Counsel to guide you and protect your interests.

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Question: “Why is a DWI not considered a crime? Are the laws more strict on someone convicted of a DWI that has injured someone as opposed to someone with a DWI that has not?”

Answer: I do not know why New Jersey has not made DWI a criminal offense. If DWI was criminalized, a Defendant would have a right to a Jury Trial, something which I personally, would like – a jury of ones peers is the best based system in the world. Yes, there can be other criminal charges filed against a Defendant when there are injuries and death.

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Question: “What is the time frame for a speedy trial the arrest took place in march of 2001. ”

Answer: There is not a specific time frame in New Jersey which embodies the constitutional right to a speedy trial. Rather, the Court must weigh and balance four factors (to assess whether a Defendant’s speedy trial rights have been violated): (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to speedy trial, and (4) any prejudice to the defendant (which does not have to be real prejudice such as the inability to properly defend the charge – it can be the psychological strain of having the prosecution hanging overhead) occasioned by the delay. With a March 2001 Arrest, the first factor (length of delay) seems to be excessive – note that this is just one factor which the Court has to weigh. If you have counsel, he/she should, if warranted, be making the appropriate record before the Court on the issue.

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Question: “If under 21 when got DUI, is expungment possible after turning 21?”

Answer: No.

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Question: “If your second offense occurs more than 10 years after your first it is my understanding that the offense then is viewed as a first offense, does this also apply to the IDRC and your time spent at the IDRC facility, or can they impose tougher sanctions on you as if it were your second offense?”

Answer: The Court cannot, but the IDRC can. The Court cannot deviate from statutory sentencing parameters. However, the Intoxicated Driver Resource Center (IDRC) may require that you attend additional counseling beyond the two day class you are required to attend.

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Question: “How can I get my DUi expunged? ”

Answer: You cannot – a DWI Conviction in New Jersey (as well as all motor vehicle violations) cannot be “expunged.” A DWI Conviction will become and remain, part of your permanent NJ driving record.

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Question: “My father was charged with several DWI offenses in NJ 10 years ago. To my knowledge, he has never appeared in court for at least 1 of those.

He is trying to get a driver’s license reinstated in Maryland and they are telling him he needs to resolve the DWI charges from NJ before they will reinstate is MD driver’s license. Does that statute of limitations apply? It appears it only applys to the charge but if there was a warrant issued for his arrest, it would not apply.

He is willing to ‘turn himself in’ and go to jail to resolve these issues if necessary. What can he do to clear his driving record in NJ and get this resolved so that he may get his driver’s license reinstated? He needs a driver’s license to make a living. Any information you can provide to point him in the right direction is appreciated!”

Answer: The first order of business is to find out precisely what courts have outstanding matters against your father (this is properly done with a review of his NJ DMV driving history). Next, each court will most likely want bail to be posted to rescind the bench warrants. Once that is done, each case must be reviewed to see whether the State can prove the charges against your father beyond a reasonable doubt. Be careful, Maryland may refuse to issue your father a license if he is suspended in New Jersey – they may want him to wait out the New Jersey suspension period. It would be foolhardy to simply enter guilty pleas in these cases before reviewing the State’s proofs. There may be jail exposure here as well – however, more facts are needed. Lastly, note that the statute of limitations (probably 30 days for your father’s cases – 90 days now) applies to when charges must be filed, not fully resolved. I would strongly suggest that your family retain New Jersey DWI Defense Counsel.

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Question: “Is there a time limit for the court to try a case?”

Answer: There is no definite time period within which the State must conclude a DWI Prosecution. However, the United States and New Jersey Constitutions provide that a Defendant is entitled to a “speedy trial.” Each case is fact sensitive – you should consult with Counsel who, when given the pertinent facts, can give you a more tailored response.

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Question: “I heard a rumor saying that, for DWI, first offense 6 months in jail, second offense a year in jail. Is this true?? If not, it should be. ”

Answer: Just a “rumor.”

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Question: “What are the laws of DWI in New Jersey?”

Answer: That is a very very broad question – you need to be more specific please.

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Question: “What constitutes a Felony in NJ DUI Law? I read at the MADD website that NJ+48 other states have the DUI felony laws.”

Answer: Currently, a DWI charge under N.J.S.A. 39:4-50 is a motor vehicle violation, not a felony. In certain cases involving death or injuries, felony charges can be filed where the DWI is an element of the offense.

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Question: “Sorry, but I couldn’t find help for my question in regards to suspended license but has nothing to do with DWI. I hope you could help me.

Background: 1995 – I was working as a door-to-door salesman, basically 7-7 hours on the road and hardly making any money. Due to that, I failed to do some repairs on my car and in the process received several tickets for it which resulted to my 1st suspension (got pulled over – driving w/ a suspended license). Took care of this problem in Trenton. Meanwhile, because of the suspension I quit my salesman job(can’t drive) and in 1996-7 moved to Florida because of financial hardship in NJ.

Florida: I found out later in Florida that I have a 2nd suspension, driving with suspended license and no insurance. Problem here is that, I was never at or near at that time of said issuance of ticket. In short, I was not driving a car at that time. Further personal investigation showed that this ticket was issued at the time I was suspended with my 1st suspension. It turns out that unbeknown to me, my girlfriend have taken the car to visit her mom and on the way home have a flat tire. She called up the tow-truck and was in the process of being towed, that’s when a patrol-car gets behind(possibly for traffic safety reason) and obviously check the plate(no moving violation).

My girlfriend have a valid NJ drivers license but she didn’t get the ticket, I did and I was not even there(the officer would have me arrested if I was there). The violation is ‘Driving with a suspended license and no insurance’. My 1st suspension was taken cared of, paid the fines and penalties and reinstated(I believed) only to be suspended for the 2nd time.

Current: This would have been a little bit easier to care of if I was still in NJ. It’s 2002 now and going 2003. I really want to care of this problem but I don’t have the money to go back to NJ and take care of this problem. Any advise or course of action would be greatly appreciated and sorry for the long post. Thank you much.”

Answer: You must first determine how much bail you need to post to vacate the bench warrant (which was presumably issued). Many courts will allow you to post bail by mail. Once that is done, the case will be listed for trial.

If you are unable to make it back to New Jersey because of financial hardship, New Jersey Court Rule 7:12-3 gives the Court permission to allow your “Statement in Mitigation or Defense by Affidavit.” This is a sworn statement of your position. Be careful – you are much better off appearing in Court in person and preferably, with counsel. The statement may very well be used as evidence of your guilt.

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Question: “What is the longest time the state can hold your license after you are convicted of your first offense with out satisfactory completing their courses? ”

Answer: Indefinitely – for others, you are referring to the required Intoxicated Drivers Resource Center (IDRC) course. The IDRC can also require that additional counseling be undertaken – if you fail to comply with their dictates, likewise, your license will be suspended until you comply.

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Question: “I have checked myself as an out patient in an Alcohol abuse program where I get tested daily. Could this get me out of going to IDRC program?”

Answer: No, you must attend the IDRC and comply with whatever treatment regimen, if any, they mandate. The outpatient treatment may satisfy a possible IDRC recomended treatment plan; however, you must attend the IDRC for screening.

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Question: “IF a person was convicted of DWI, a first offense, 8 years ago, and recently got a second offense, is the first offense considered, or is there a statute of limitations making his new offense the first offense again?”

Answer: Yes, the first offense, being less than 10 years from the 2nd offense, would be considered for purposes of sentencing on the 2nd offense.

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Question: “what are the judges allowed to do with a 3rd conviction of dwi for sentencing purposes. are they allowed to suspend the jail and/or inpatient rehab ??? Is it up to their discretion??? Are there any other programs that can be implemented. thank you. ”

Answer: There is a mandatory 180 day jail sentence. However, 90 days of it can, in the Court’s discretion, be served with community service, leaving a 90 day balance. That 90 day balance can, in the Court’s discretion, be served by admittance into an in-patient rehabilitation program. If the facility releases you before the end of the 90 days is finished (which most will do), the Court can allow you to serve the balance by attending the requisite outpatient care as mandated by the facility.

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Question: “Will I go to jail on a .20 reading on a second offense my first offense was in 1995, I have already checked myself in to an outpatient program to get help with alcohol? I’m just scared of going to jail. ”

Answer: There is a mandatory 48 hour jail sentence for a second offense and up to 90 days. There are jail alternatives – for example, attending an overnight two day IDRC program. Your treatment efforts certainly will help to try and argue against jail time although there may be other factors present here which experienced counsel can advocate on your behalf. You should consider hiring an attorney to guide you and protect your interests – if you cannot afford counsel, you should apply for the public defender.

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Question: “I got a reading of 2.0 my 2nd offense, what kind of fines am I looking at?”

Answer: If you are convicted or plead guilty, $500.00 to $1,000.00 fine – you will also have a surcharge of $1,000.00 per year through NJ DMV. You asked about “fine[s]” only – note that there are other penalties which must be imposed on a 2nd offense.

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Question: “I received a DWI over three years ago. Will the charge appear on a criminal background check done by a prospective employer. Thanks.

Answer: A DWI is not a crime in New Jersey. A record of the conviction does however, appear on your permanent NJ DMV record.

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Question: “several years ago, i was arrested for first time dwi. the arrest occurred because of an anonymous tip made via cell phone. the caller dialed 911 and reported a car driving all over the road. the caller then gave the 911 dispatcher my license plate. the dispatcher ran the plate number for identification and then notified the town police where i reside. the police then sent a patrol car to check my house. as i was not yet home, the police then placed a patrol car down the block from my home and waited for me to drive past. when i did, they immediately turned on their lights and had me pull over, this despite the fact that they witnessed nothing improper. after the stop was made, they advised me that i was pulled over because of a complaint, they asked me if i was drinking, I said that I had had a few, and they then appeared to follow the usual procedures. Ultimately I failed the fst, was taken to the station house, and given three breath tests. The readings came in at .20, .23, and finally .21 in that order. at that point I was formally charged with dwi and released. My trial attorney at the time advised me that i would probably lose the case on the basis of the fst,this despite the fact that the breath tests were legally invalid since they were too far apart numerically. of more important note, though, was his position that the police, in his opinion, made an illegal stop, one which was instigated strictly on the basis of an anonymous tip with absolutely no corroborating evidence witnessed by the police. on that basis, my attorney made a motion to suppress. it took the municipal judge four months to issue his ruling on the motion which was one of denial, citing the community caretaker provision in his decision. after that, my attorney advised me that the best course of action was to enter a conditional plea of guilty contingent on my right to appeal the motion and hold onto my license in the interim. the municipal judge agreed. at the de novo review in superior court, meanwhile, the judge also denied the motion to suppress, after which i appealed to the state appellate division for a second review. i am currently awaiting the court’s decision on this matter.

That said and done, I would be curious to know if my trial attorney’s approach was the proper one. In addition, if I lose at the appellate level, do I still have any options open where I cold hold onto my license during the process. Thank you in advance for your comments.”

Answer: Without knowing all of the facts, I would be hard pressed to question your attorney’s use of the “conditional plea.” Generally however, the use of the conditional plea is a good tool where the State’s observation case against is extremely strong. In these cases, it is better not to clutter the record with the State’s strong observations – e.g. Defendant falling over drunk, etc.

If you lose in the Appellate Division, you can seek review in the New Jersey Supreme Court. The Appellate Division may, but is not required to, stay the license revocation pending Supreme Court review.

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Question: “Do I have the right to a public defender if I cant afford a lawyer?”

Answer: Yes, because the penalties for a DWI conviction are what is known as “consequences of magnitude”, you are entitled to a public defender if you cannot afford one.

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Question: “A bench warrant was issued against my son for “failure to appear” in court. He is now living in VA. Is there a statute of limitations on the bench warrant?”

Answer: No – provided that the summons was issued within 30 days of the offense, there is no “statute of limitations” on a warrant.

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Question: “can a bicyclist be charged with DWI for operating a bicycle in the state of NJ? Is there case law to support a conviction?”

Answer: This is an interesting question, because there is no clear line of authority on the issue. In State v. Machuzak, 227 N.J. Super. 279 (Law Div. 1988), the Court (Somerset County) held that the DWI Statute (NJSA 39:4-50) clearly did not apply to non-motorized bicycles. A Cumberland Superior Court also held that the Statute was not applicable – see State v. Johnson, 203 N.J. Super. 436 (Law Div. 1985). However, in State v. Tehan, 190 N.J. Super. 348 (Law Div. 1982), a Court (in Somerset County) found that a bicyclist could be found guilty of DWI, although the license revocation could not be imposed.

Until a higher Court in New Jersey rules on the issue, technically, the issue is unfortunately, not clearly answered. Where as here, there are conflicting Law Division Decisions (the Courts above the lower Municipal Courts), the issue is technically regarded as unresolved, although the Machuzak and Johnson decisions appear better-reasoned that the Tehan ruling.

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Question: “A friend with 2 prior convictions has been through the IDRC system, counseling, etc. and was told by another person that you can get a DUI as a PASSENGER in someone else’s car if tha driver is given a DUI. The reason he was told was because as a passenger, you are contributing to that driver’s offense. He asked his IDRC counselor if this was true and the counselor told him that “it was possible”. This is outrageous if true. I have heard that you can get a DUI if someon drunk is driving YOUR car, for obvious bad judgment and consent reasons, but if they are driving their own car, how can this be chargeable to a passenger? I have asked a police officer and he said he never heard this, but I don’t want to rely on him alone. My friend is worried sick that he could be in a car as a passenger and not know how much that driver has had to drink and then him getting a 3rd DUI – that would be devastating. 10 years without a license would ruin anyone’s life. He can control himself never getting another DUI, but as a passenger, that’s another story. Can you give us some legal advice on this outrageous-if-true law? Thank you!”

Answer: The Statute, N.J.S.A. 39:4-50 (i.e. NJ DWI Law) provides generally that a person may be charged with DWI if he “permits another person who is under the influence … to operate a motor vehicle owned by him or in his custody or control or permits another to operate …” So yes, it is possible for a passenger to be charged with DWI for what sometimes is referred to as an “allowing” charge. It is usually a rare charge because the State has to prove that the allowing was a “knowing” type of allowing – but why take the chance.

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Question: “I received a DWI conviction in February, 2000. I had a clean driving record prior to and following this conviction. I was just in a fender-bender in which I was issued a careless driving summons because I rear-ended the other vehicle. This is potentially a 2-point offense. Two questions 1) How many points did I receive on my license for the original DWI and have any of those points been removed in the two years that I’ve had no traffic violations? and 2) Is it true that insurance points for DWIs are NEVER removed from your insurance record? Please respond. I’d like to know if I need to bring a lawyer to court to try to get the careless driving reduced or if I can go on my own. Thanks. ”

Answer: A DWI conviction does not carry with it DMV points. However, a DWI conviction does result in insurance eligibility points which translate into insurance rate increases. Most carriers look back three years. The careless driving summons, as you note, is a two point ticket. However, note that an at fault accident resulting in a payment of $500.00 or more may also result in insurance eligibility points. This might be so even though the careless driving summons was reduced to a no point violation.

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Question: “hello, i am currently in my 6th year out of 10 year suspension recently became disable and file’d for social security benefits i don’t really wan’t to live on this. i live in the northwest corner of NJ where transit is limited and i am not able to perform certain kin’d of work but there is work if i could just get to these places rather than be on SSI is there a possible way my case can be brought u in court again for a redetermination or some kind of thing that would allow me to work again. ”

Answer: This is a common question. Currently, there is not a procedure in New Jersey whereby a properly imposed license revocation for a DWI conviction can be lessened. There may be other avenues of possible attack – for example, the revocation period may have been unlawful (highly rare), the guilty plea may have been taken improperly and therefore subject to being vacated or there might be a constitutional defect with regard to the trial procedure which would allow for the judgment being vacated and new trial to be granted. These avenues are usually long shots, but nonetheless, available as possibilities. Further, there is generally a five year time constraint (extended upon good cause) within which to bring certain of the applications to open up the case(s).

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Question: “WHAT HAPPENS IF AFTER 10 YEARS YOU GET A BILL FOR A SURCHARGE YOU KNEW NOTHING ABOUT OR EVER RECVD ANYTHING. ”

Answer: This does not obviate the responsibility to pay the surcharge.

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Question: “My husband just got his 3rd DWI. The first was over 10 years ago. Does this one count as his 3rd or 2nd? There is a lot of confusion over this point among the police. ”

Answer: If the gap between the 2nd and 3rd is less than ten years, the 3rd is regarded as a 3rd offense for sentencing purposes (even though the 1st is over ten years ago).

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Question: “I received a DUI over 15 years ago in NJ. I left the state before needing to get a new license. Just recently I received a letter stating I needed to pay $3000 in surcharges plus interest. What are the repercussions of not paying this penalty? ”

Answer: New Jersey can enter a money judgment against you for the amount due. The judgment can result in enforcement measures in New Jersey or in your home State to collect that judgment, can effect your credit, and could prevent you from obtaining a license in another State. The judgment also means that your driving privileges are revoked in New Jersey – if you are caught driving in NJ, you will be subject to penalties for driving with a revoked/suspended driver’s license (N.J.S. 39:3-40).

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Question: “Is it considered a DWI while drunk (passed out) in a parked car without the keys and but you do have 1/2 a bottle of alcohol? Can you get a seatbelt ticket too? ”

Answer: The State has to prove “operation” — this can be done with direct proof of operation (i.e., witness), proof of an intent to drive, or proof that the car was driven (i.e., there is an inference that the car was operated). Whether the State can prove their case is dependent on the specific facts in your case.

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Question: “I recently was pulled over and charged with DWI and reckless driving. I was given the field tests and failed. I was given the breathalyzer and received a .06 reading on both tries. What are my chances of winning? I was pulled over because I was pulling out of the lot of a closed down dinner. I was tired and pulled over and thought I would nap, then realized that was not a good idea. The cop pulled me over because I was pulling out of the lot; not because I was weaving. Is this a good enough reason to pull me over? Thanks in advance for your help. ”

Answer: The State does not necessarily need a .10 blood alcohol concentration reading to charge and convict for DWI. However, given the low reading, generally, a DWI prosecution would be difficult unless the observation evidence (how you performed on the balance tests and how you appeared generally) is otherwise very strong. Experienced counsel with the assistance of an outside field sobriety testing expert should be able to expose the weaknesses in the State’s case.

Pulling out of a closed diner raises an issue as to the State’s probable cause to have stopped you – I would certainly raise and argue the issue. However, the State may very argue (and prevail) that they were within their rights under what is called the “community caretaking” doctrine.

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Question: “Hi, I recently received a second dui charge. It just so happened that I had to move to Florida from New Jersey (for work) weeks after getting the ticket. I didn’t go to court yet but since I moved, I already changed my license to Florida. Can NJ suspend my FL DL? Will FL suspend it after finding out that was convicted (if in fact I am)?”

Answer: NJ only has the jurisdiction (i.e., authority) to suspend your NJ license. As to the effect on your FL license, you are guided to speak with a FL DWI attorney since I am not licensed to practice law there.

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Question: “After 10 years if you get another dwi is that considered first or second offense. ”

Answer: If your second DWI occurs more that 10 years after your first offense, the court must treat the defendant as a first offender for sentencing purposes. However, if a subsequent 3rd offense occurs and that offense is within ten years of the 2nd, the defendant is treated as a 3rd offender.

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Question: “Do I need to get a Lawyer? ”

Answer: There is no legal requirement that you have a lawyer for a DWI charge. A lawyer is however, most often a wise choice. An experienced DWI Lawyer can, among other things, look for defects in the State’s case which may translate into a finding of not guilty on the charge.

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Question: “In April 1983 I plead guilty to dwi, surrendered my license and paid the fines. I moved out of state and never received any further notifications. now 19 yrs. Later I received a bill for 3yrs. surcharge($1000) per yr., 350 reinstatement fees and interest.My attorney never mentioned the surcharge fees at that time and having recently moved I just threw the records out. Am I responsible for these charges? I don’t think its worth $4500 to drive the NJ Turnpike. Thanks.

Answer: Yes, you are obligated to pay the surcharges.

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Question: “Is a DWI a criminal or municipal offense? Will a dwi show up on a criminal background check for employment? If it does this supports my theory of the laws being to strict. Are you ever allowed to get your life back? Please answer my questions. ”

Answer: In NJ, DWI is regarded as a motor vehicle offense. A record of the conviction becomes part of your permanent motor vehicle (DMV) record.

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Question: “If I got caught With a DWI in another persons car. Will the other person get the DWI also? ”

Answer: The State would have to prove that the other person knowingly allowed you to drive while intoxicated to charge and convict.

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Question: “Is there a way to prevent DWIs from appearing in the local papers?”

Answer: No, this is public information open to the press.

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Question: “I live in NJ and recently received a DWI. When I was handcuffed and placed in the police car, I thought I would be read my rights. I never was. Later, I was read a form and had to sign it before I took the breath test. Are the police required to read your rights when you are arrested for a DWI? I was also never finger printed.”

Answer: The Police are required to advise you of your “Miranda Rights” once you are in their custody. The Police do not have to take your finger prints.

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Question: “Can you be charged with DWI if you car is turned off and the keys are not in the ignition?”

Answer: Yes, “you can be charged with DWI.” The State will, however, have the burden of proving operation either by an intent to operate, witness of operation, an inference that you did drive, or by admission of driving. The State will also have to show that the breath tests were conducted within a reasonable period of time from the operation.

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Question: “Can you be charged with both underage DWI and DWI? ”

Answer: Yes.

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Question: “NEW JERSEY DRIVERS CONVICTED ON A DWICHARGE ARE ASSESSED ‘ELIGIBILITY POINTS’BY THEIR INSURANCE COMPANIES. THIS MAY RESULT IN A CANCELLATION OF THEIR POLICY. IF THE DMV REQUIRES AUTOS TO BE INSURED, WHAT IS THE DRIVER TO DO IN THIS CIRCUMSTANCE? ”

Answer: Insurance is available through the Assigned Risk Plan in New Jersey. This is insurance for so called “high risk” drivers. I have heard of rates going up three times following a DWI Conviction.

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Question: “I was wondering what offense would I be charged with today if i got another DWI. I have had 2 DWI’s, one in1986 and a second in 1988. I could have gotten my license back after 2 yrs. but chose not too. Now 14 years later and a responsible man, not a dumb kid, would I have the penalties stepped down to a 2nd offense? I am currently sober and doing well. ”

Answer: Yes, you would be sentenced as a 2nd offender upon a guilty plea or guilty finding.

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Question: “This is third offense for my son. I am worried about the jail time as I am sure it will not make him a better person and fear violence to him and him being raped. Do all 3rd time offenses go to jail? Is it cut and dry on this. Can’t they send him to a rehab instead that would help more and do not think would be attacked and raped. Please write me on your experience on this matter. Thank you. ”

Answer: Upon a conviction for a 3rd offense, the Court must impose a 180 day jail sentence. However, the law further allows the jail to be split as follows: 90 days community service, and 90 days of inpatient substance abuse rehabilitation. The 90 day inpatient stay can be further reduced provided that the facility director petitions the Court and advises that it is medically appropriate for the patient to be released to outpatient care for the balance of the 90 days. There are sometimes sentencing issues whereby the 3rd offender status can be compromised (i.e., the jail can be eliminated). One would have to carefully review the important facts of your son’s case. Your son most definitely needs an attorney.

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Question: I am a college student going to Monmouth University. I have to write a paper about drunk driving in New Jersey and there are a few questions I am having trouble finding the answers to. 1. What is the difference between a DWI and DUI? 2. What is the history/background of drunk driving? 3. What is the significance of this problem? 4. What are the effects and causes of drunk driving? 5. What has been done to solve this problem in the past? What are possible solutions?

These are the questions I am trying to find answers to. Can you please get back to me as soon as possible with any answers you may have? Thank you very much!

Answer: 1. DWI is an acronym for Driving While Intoxicated — DUI is an acronym for Driving Under the Influence. In New Jersey and in most States, there is no distinction between the two.

2. The “history and backround” of Drunk Driving — wow, that is a broad question and one which I cannot properly answer here. I would suggest that you begin your analysis with New Jersey’s DWI Statute (N.J.S.A. 39:4-50), our lawmakers pronouncement of what is prohibited and the penalties. You can find the Statute in the a Law Library at your County Court House. Go to the “Annotations” which contain precedent known as “case law” which interprets the Statute. You can also access the “Legislative History” of the Statute at your Law Library – this will show you what was on our lawmakers minds when they enacted the laws and the changes to it over the years.

3. The “significance of the problem” depends on what “problem” you are referring to. Presumably, you are referring to the injuries and death caused by people who drive intoxicated. If you are looking for statistics and the like, you might want to go to the National Highway Traffic Safety Administration website as a start.

4. The “effects and causes” of Drunk Driving are as varied as human nature. Some people suffer from the disease of alcoholism, some people are drinking because of some other personal problem such as depression, anxiety, or stressful life event such as a divorce or death of a loved one and some people just make stupid and irresponsible mistake of driving after having too much to drink. The “effects” are on those Defendants who are charged and convicted of DWI (the penalties in NJ are among the strictest in the Nation — the fines, surcharges and increased insurance rates approximate about $10,000.00 over three years). Of course, there may be “effects” on innocent others if there is an injury or death.

5. What has been done and the solutions is again, a broad question. I would suggest that you look at the Law in New Jersey, look at the causes, and ask whether increased punishment is an appropriate solution. You should also specifically look at the requirement in New Jersey that Defendants convicted attend the New Jersey Intoxicated Driver’s Resource Center, a screening and education program which is run be devoted people and whose training, education and screening has proven to be very valuable in reducing recidivism. You may also want to look into what programs are available to those people who are suffering from the disease of alcoholism, and whether New Jersey should focus more on affordable treatment of sick people rather than the punitive aspects.

One final word of advice — research the issue and gather as much information you can. I would suggest that you spend some time in a New Jersey law library. When you do your paper, aside from regurgitating facts and other statistics, you should focus on coming up with your own creative ideas. Good Luck with your paper and your education. I hope this helps.

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Question: “I was convicted in 1996 for refusal to submit to a chemical test. I was just arrested for DWI. I took the Breathalyzer test and produced a reading of .14. Will this be considered a first of second offense for DWI?”

Answer: If you are convicted or plead guilty to DWI, there is law holding that the prior refusal conviction should not be treated as a prior violation for purposes of enhancing your sentencing status. see State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993). Thus, the DWI should be considered a first for sentencing purposes.

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Question: “If I have been convicted of dwi first offense, and have decided not to drive for the 3 years, do I still have to pay $1000.00 per year insurance surcharge. I will not be driving!! ”

Answer: If you do not pay the surcharge, when the three years is up and you want to go back to driving, you will be suspended for failing to pay the surcharges. Further, DMV will tack on interest and costs and your failure to pay may result in a formal judgment being entered against you. You may have your assets levied, and the judgment will be on your credit history. The answer to your question is yes, you can decide not to pay the surcharges, but note the consequences of failing to do.

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Question: “Is there a so called 10 yr. law where if you had a d.w.i. 10 or more yrs. ago, a new d.w.i. would be treated as your 1st. is this true? ”

Answer: This is sometimes called a “step down” – if a 2nd offense occurs more than 10 years after the 1st offense, the court must treat the 2nd as a first for sentencing purposes. However, note that upon a 3rd conviction, if the gap between 2nd and 3rd offenses is more than 10 years, the Defendant is to be treated as a 2nd offender, not a 3rd. Further, if a 3rd occurs within the 10 years of the 2nd, the Defendant is treated as a 3rd offender — that is even if the gap between the 1st and 2nd is greater than 10 years and the Defendant was treated as a 1st offender for his 2nd offense.

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Question: Is it true that the breath analyzer must be administered twice, and results be in a narrow margin for it to be used?

Answer: The “Breathalyzer”, used in New Jersey, must be administered two times within fifteen minutes, with samples within .01 of one another — the lowest of the two reading is used for proof purposes.

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Question: “Is drunk driving a Felony in the state of New Jersey?”

Answer: No.

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Question: “I got stopped for speeding and was subject to field sobriety tests. Upon conclusion of my tests I was taken in and took a breathalyzer test. I passed below .10 (.08) I was given a ticket for speeding and Reckless.( no mention of DUI on the tickets). Will this be brought up in court? Are the charges only Reckless and speeding? I had a DWI conviction 3 years ago. Can this be used against me? I have no DMV points on my license. Only insurance points for DWI. Thanks for your help .”

Answer: The State has 90 days to issue another ticket for DWI. You need to sit tight — experienced counsel would benefit you here. The prior DWI may very well be looked at by the Prosecutor in assessing a recommended license revocation for the reckless driving charge. The amount of alcohol (albeit under the per se limit of .10%) will be an issue in Court. The consumption of alcohol is the State’s theory in writing the Reckless ticket.

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Question: “How many drinks can a 200lb man have per hour on avg. and still drive legally?”

Answer: There are far too many variables for me to go out on a limb to answer this question in this open forum. The best rule of thumb is to not take the chance by trying to gauge your intoxication.

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Question: “Going through a dui in pa with a nj license—is there a work restricted license offered in nj….i live in nj and work here also…warren co and hunterton co to and from work?”

Answer: No – NJ does not currently allow for a conditional license for work or otherwise.

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Question: “Is there a statute of limitations on a dwi? How can I find out if it is an outstanding warrant? I received one 13 years ago. I was in a drug rehab when I was supposed to be in court.”

Answer: The “statute of limitations” applies to the issuance of the summons and complaint only. You probably have a warrant — to confirm the status, contact the court administrator. Good Luck.

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Question: “What is someone is pulled over for speeding and is drunk in a school zone but it is after school hours are over, let’s say 11 PM, does the school zone restrictions still apply? ”

Answer: The “school zone” enhancements in the New Jersey DWI Statute currently apply regardless of the time of day, and whether school is in session or whether children are present.

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Question: “How bad is .13?”

Answer: It depends on what you mean by “bad.” In terms of sentencing (if you were to be found guilty or pleaded guilty), a .13% B.A.C. is not regarded by most courts as an exasperating factor which would cause the Court to impose penalties beyond the mandatory minimums. However, the B.A.C. has to be taken into consideration with all the other facts (e.g., driving pattern, driving record, relations with the cops to name a few). I hope this responds to your concerns.

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Question: “Does our state have some arrangement wherein a DWI offense driver can go for a DWI defensive driving course to reduce charges?”

Answer: No, not currently.

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Question: “I am a 24 year old third year medical student. I received a DWI three years ago. Is there any point in time where I can try to move to have it removed from my record. Thank you very much.”

Answer: Currently, there is no procedure in New Jersey to expunge or remove a DWI conviction from your New Jersey DMV driving record.

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Question: “My girlfriend was caught with a dui, and she is 19, she had a .01 BAC and they didn’t give her a breathalyzer or read her rights before they brought her to the station. They said they pulled her over for ‘hugging’ the yellow line. she was driving fine, she was the designated driver and only had a couple drinks. We let her drive because she was sober, and everyone else was really drunk. Any information you can give me would be a great help. ”

Answer: Something just does not appear accurate. How can the State allege . 01% BAC without a breathalyzer reading? Further, with a . 01% reading (90% under NJ per se limit of. 10%), are you sure the charge was DWI as opposed to underage DWI?

I would need more information to better assess the case. However, remember that the State has the burden of proof beyond a reasonable doubt as to their charge(s). Please either email me with more detailed information, or call me or have your girlfriend call my office.

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Question: “What happens to a defendant when he does not show up for court?”

Answer: The Court will issue a “bench warrant” for the defendant’s arrest with a stated bail. The New Jersey DMV will also revoke the driving privileges of the defendant indefinitely until the defendant responds to the ticket and fully resolves the matter.

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Question: “How do I eliminate past DWI convictions(over 10 yrs old) from my driving record/abstract? Are there state or federal laws governing this? Any direction to this effect will be appreciated. ”

Answer: There is no “expungement” procedure available in New Jersey to eliminate a DWI conviction from your NJ driving record. The only way to eliminate a prior conviction would be to go back into the convicting courts to either vacate the guilty pleas, or to move for other “post conviction relief.” The chances are usually slim given the age of the case(s), but, the possibility (as opposed to the probability) is technically there.

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Question: “I’m a Pa resident. I got a DWI in NJ. I lost my Privilege to drive in NJ Then lost my PA license for one year. Now NJ wants me to pay their insurance surcharges. Do I have to pay? ”

Answer: Yes, currently, the law allows NJ DMV to impose the yearly DWI surcharge even though you live outside of New Jersey.

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Question: “Will a dwi ever be off someone’s record? Example: Would a 2002 DWI charge be considered 2nd offense if the first DWI charge was in 1986? Thank you.”

Answer: The conviction will remain a part of the driver’s permanent dmv record. However, in specific answer to your question, a second conviction for DWI would be treated as a first offense for sentencing purposes because there is a gap of ten years between offenses.

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Question: “My 21 yr. old daughter refused the breath test because she thought I was calling our attorney. The police would not let me speak with her to let her know I could not get through, or else she would have taken it, she also did not know and was not told that by not taking it you were guilty. Our lawyer says all these does not matter, a refusal is a refusal. This is in New Jersey thank you.”

Answer: At the outset, note that there is no right to a lawyer or advice of counsel before giving breath samples. The police are requires to read a suspect a “standard statement of rights” before the breath testing — the statement advises a suspect of, among other things, the consequences of refusing to submit.

If this statement (the proper statement) was not read, this would be a defense to the State’s Refusal charge. The fact that your daughter refused because she thought you were contacting counsel in and of itself is not relevant. Without seeing the State’s records and reports (“discovery”), I cannot, however, fully assess the matter. There might be other defense issues, and other facts not mentioned by you, might be relevant to.

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Question: “Hello, I received two DWI convictions 11 yrs. ago. I subsequently moved out of state and after 2yrs reapplied and received a non-NJ drivers license. I never paid the insurance surcharge but paid all the other fines and completed the community service requirement. My question is am I legal to drive in NJ with my out of state drivers license? ”

Answer: No, if your privileges are suspended in NJ (and they should be for your failure to pay the surcharges), it is illegal to operate a motor vehicle in the state of New Jersey even though you have a valid license in another State which may be in good standing.

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Question: “is DUI a felony in NJ?”

Answer: No.

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Question: “my drivers license was suspended for l0 years, this happened after I had claimed bankruptcy and had gone through a very difficult divorce, previously I had attended a good treatment program and worked through all the emotional turmoil, I was pulled over for a tag light that had gone out on my parents car, I was driving 25 miles an hour on a very foggy night last October, 2000. I had only just gotten my license back and had worked very hard to do this, I was not drinking and I was the designated driver for a neighbor, I refused the Breathalyzer as I didn’t trust it I had been in the presence of an officer who dated my ex girlfriend and vowed to get me, anyway after all of this, I accepted the loss and went through the idrc who wanted me to attend meetings and get them signed, I am at the end of the line, I have given everything I could have and now I was arrested on a non compliance charge, that was mistakenly sent as a DWI charge, we posted 500.00 bail and was never notified of the court date the officer in my town has called the court clerk in the original town and told them that there was no court date given to me, now they have issued another warrant, for 750.00 I am about ready to just give up, because I have no where to go and don’t know what to do, can you give me some suggestions.”

Answer: Attendance at the IDRC is required for a refusal to submit conviction. For more information on the IDRC, see NJ DMV site information at http://www.state.nj.us/mvs/idrc.htm

The warrant must be cleared — i.e., rescinded with bail posted, or an application to the court to rescind. It would appear however, that the quickest way to handle the matter would be to post the bail. You would then have to see what the alleged non compliance is — perhaps you just never went to the IDRC at all, as opposed to failing to adhere to the IDRC mandate for outside counseling.

You should consider hiring counsel to sort through all of this given your exposure to jail.

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Question: “My wife had a single car accident on the NJ turnpike which she had to call 911 to get help. She had suffered head and face injures. She was given a FST and then sent off to the hospital. Three days later we received three tickets in the mail from the helpful state police. She was cited with careless driving, driving without a seat belt and no registration. I have two questions First how can the police issue these tickets when the infractions where not in there presence as stated in 39:5-25. Also could the state request a blood sample without my wife’s permission or knowledge. Thank you.

Answer: The State can issue any tickets they wish — however, they must prove guilt beyond a reasonable doubt. In State v. Wenzel, 113 N.J. Super., 215, 216-18 (App. Div. 1971), the Court held that the single fact of an “otherwise unexplained jackknifing” where a tractor-trailer jackknifed on the wet roadway, crossed into the opposite lane and broadsided another truck, did not establish a violation of the careless driving statute. See Also: State v. Lutz, 309 N.J. Super. 317 (App. Div. 1998) Found On Line @ http://lawlibrary.rutgers.edu/decisions/appellate/a5933-96.opn.html where there was an accident and a statement of the defendant that his vehicle began to slide on the wet highway and continued to slide as he applied his brakes. The Court held that this statement alone (again, there were no other witnesses), coupled with the defendant’s apology were insufficient to prove careless driving.

The above line of cases would appear to apply to this case, but without reviewing all of the State’s reports and records, I cannot advise you definitively.

The Police can withdraw blood from a defendant without consent or knowledge provided that there is probable cause to believe that the defendant is DWI. The fact of the accident is taken together with all of the other facts and circumstances to determine whether there was a reasonable suspicion that the defendant was DWI — e.g., smell of alcoholic beverage from the suspect’s breath, bloodshot and watery eyes, performance on sobriety tests, admissions, etc.

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Question: “Convicted of dwi approx. 12 yrs ago in nj, left the state without paying surcharge, considering moving back to nj what would I need to do in order to get a nj license? ”

Answer: You need to pay off the surcharge — you should contact DMV to find out the amount and payment instructions. Sometimes, NJ DMV will give a clearance if a payment plan is entered into, however, given the age of your conviction, I suspect that the amount you owe may be reduced to a judgment being handled by a third party collector. Usually, when these surcharges get this aged, you need to pay the total before getting clearance for a NJ License. Again, you should contact DMV to find out the specifics of the surcharge, and whether you have any other matters outstanding.

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Question: “I am being charged with DUI in New York. My breathalyzer test was .09. Is there anyway that I can contest NJ taking away my NJ drivers license?”

Answer: This is an interesting issue — the answer to your question is Yes. Assuming that you plead guilty or are found guilty of DWI or New York’s lesser offense, known as DWAI, the conviction will be shared with New Jersey. Thereafter, New Jersey DMV will most probably give credit to the conviction by a virtue of a doctrine known as reciprocity. If this is a first offense for you, DMV will seek to suspend your NJ privileges for 6 months and impose the $1,000.00 yearly surcharge for 3 years. If you have prior DWI offenses, the penalties are different.

Where your situation gets interesting is that for purposes of the New Jersey DWI Statute, New Jersey law does not recognize an out of state conviction as a prior conviction for purposes of sentencing where the conviction is based exclusively on a blood alcohol concentration of less than .10%. However, the administrative regulations which apply to the reciprocity issue do not specifically make this exception as the Statute does.

The argument which can be made is that since the Statute itself would not recognize the out of state conviction, DMV should likewise, refuse to honor it for purposes of seeking to suspend your NJ privileges.

What this all means is that the New York conviction or plea should properly memorialize the B.A.C. (under the .10%) — all documents as well as a transcript of the matter should be obtained from New York. When NJ DMV seeks to suspend your NJ privileges, you would need to contest the matter administratively and may wind up seeking to break new ground in New Jersey Law. Of course, if you could win the NY matter with either a dismissal, a not guilty verdict, or some other resolution short of DWI or DWAI, the issues here would be moot. You will definitely need counsel here to advocate this position given the intricate and novel nature of the matter.

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Question: “My sister was arrested on 2 dwi violations in which she was in contempt of court. her bail was 1550.00. The charges are as follows.39:4:50 and 19:18:12 Bail was originally set for the 2 on 12/94 and 5/91. Is there a statued [sic] of limitation on any of these charges. Please advise and let me know what she should do. Thank you ”

Answer: The “Statute of Limitations” would not apply since the charges have been filed and your sister simply has not appeared in response to the charges.

The consequences of a DWI conviction are harsh — your sister has two charges of DWI and therefore faces sentencing as a 2nd offender if convicted. She should consult with a DWI defense attorney to better explain her exposure and legal defense(s).

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Question: “Can a judgment for retrieval of delinquent DMV surcharge monies be used to halt the sale of real estate? ”

Answer: If the surcharge has been reduced to a “judgment,” the amount due would be a lien on any real estate owned by the judgment debtor (i.e., the person who owes the money). Any judgment would have to be paid before closing or withheld from the sale proceeds in order for the buyer to receive clear title.

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Question: Is there a statute of limitations on the$1000 per year DMV surcharge if you no longer drive or reside in N.J.?

Answer: No.

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Question: Is that debt ever forgiven?

Answer: No.

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Question: How long does a DWI in NJ stay on my record?

Answer: The conviction will remain part of your permanent NJ DMV driving record.

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Question: Is there a law regarding how long an officer must wait before administering a breathalyzer test? If so, could violation of this render the results useless?

Answer: Training and procedure call for the breathalyzer operator to observe the Defendant for a full 20 minutes prior to administering the breathalyzer. I assume this is what you mean by “wait” in your question. The purpose of the 20 minute observation is to assure that any mouth alcohol has dissipated and to assure that nothing foreign is placed in the mouth cavity.

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Question: this happened to me, please advise. after leaving a bar, i decided that i had too much to drink. i pulled to the side, shoulder, of the road, turned off my car, removed the keys from the ignition and placed them on the floor of the back-seat, reclined the drivers seat and went to sleep. i was awakened by the police, given a field test and arrested. i was given a breath test which came out as a .10 (i think). I had every intention of not driving and if necessary, calling someone to come pick me up. I await your response.

Answer: In NJ, the State does not have to prove actual operation of the car as an element of the DWI offense. The State, to show “operation” of the vehicle in cases where there is none observed, must show (beyond a reasonable doubt) either (1) an intent to drive (where for example, one enters a car and manifests an intent to drive), or (2) that the car was driven (by inference — where for example a car is on the side of a busy highway parked).

It may be that the State will be able to show that the car was operated by inference, but without investigating the State’s case, including the reports and records (called discovery), I cannot say one way or another.

The facts and circumstances of your case must be fully and carefully reviewed for a more tailored response to your question(s). Further, there may be other defense issues in your case other than the operation issue. Only upon a review of the details of your case can one properly assess the State’s case again you.

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Question: I am licensed in the state of NJ but was arrested in Florida for DWI. Will I be eligible for a work permit to drive in NJ for work or will my license be revoked completely? Also, will the community service, if imposed, be done in NJ or Florida?

Answer: New Jersey does not allow for work permits — although Florida law does, New Jersey Law would not follow Florida’s sentence in this regard. As to the “community service”, you would need to check with Florida to see whether they would allow it to be transferred to New Jersey. This would be completely up to Florida. The consequences in New Jersey you asked about all assume you are convicted in Florida. Your first line of defense is an attorney in Florida who is committed to defending DWI charges.

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Question: What are the penalties for NJ Statute 39:4-50a, allowing a person under the influence to drive? Thank you.

Answer: The penalties for “allowing” DWI are the same as for “operating” DWI.

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Question: I wondering if dwi offenses include any points on license. And also is it common to receive other summons on top of the dwi summons like reckless driving and a failure to stay within lanes. Because this is what I was issued. it doesn’t seem right to get the other two summons.

Answer: A DWI conviction does not result in DMV “points” — insurance companies are, however, allowed to assess “eligibility points” against you resulting in increased insurance rates (typically, through the “assigned risk” plan in New Jersey). It is common that a DWI charge will be accompanied by other moving violations, such as failing to maintain lane, careless driving, etc.

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Question: I was recently arrested for a second DWI within a 2 year period. I am seeking alcohol treatment for this problem. Is jail time mandatory on a 2nd offense or are there alternatives which the court can impose such as community service, additional treatment? Any information would be greatly appreciated. Thank you.

Answer: There is a mandatory minimum 2 day jail sentence — however, the Court may, in their discretion, allow that 48 hours to be served in the Intoxicated Driver’s Resource Center. Good luck with your case and treatment.

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Question: Is it possible the NJ DMV surcharge of $3000 ($1000/yr for 3 years) must be paid up front at the time of court appearance?

Answer: No. The surcharge is collected by DMV — you will be billed $1,000.00 each year by DMV.

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Question: Can the police take a blood sample from a person without any form of consent where there is an accident involving injuries to both driver’s?

Answer: Yes, provided that the police have probable cause to believe that the person is DWI.

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Question: I was convicted of N.J.S.A. 39:4 – 50 (a) in 1991. I am wondering if at this point it is possible to expunge my record of this conviction.

Answer: No, unfortunately, there is currently no mechanism whereby a DWI conviction can be “expunged” from the driving record. As to insurance surcharges, generally they should last only three years (although the conviction will still show up on your DMV driver’s abstract). There are procedures available to either vacate a guilty plea or to try and vacate a guilty verdict, those issues are beyond the scope of your question.

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Question: Before you submit to a Breathalyzer test, are you permitted to request that either a lawyer or a physician be called?

Answer: No – however, you are entitled to have independent tests conducted of your breath, blood or urine by someone of your own choosing. The police are required to advise you of this right prior to administering the breath tests.

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Question: (cont’d)… and more importantly if you are read both your Miranda warnings and the Refusal warnings, and simply are unable to understand such (not because of being under the influence but because of education) are you entitled to have someone else opinion of what to do (e.g., lawyer, physician, parent, etc.) before you say no or yes?

Answer: No, you are not entitled to have someone else explain the rights to you. There may be other defenses available (assuming you were issued a charge of Refusal) which can only be assessed after carefully reviewing all of the facts and circumstances. One possible defense is commonly referred to as the “confusion doctrine” — basically, that you were confused between the conflicting Miranda rights and your obligation to give samples of your breath.

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Question: “If someone refuses to submit to the Breathalyzer, is that an automatic conviction? Can you be charged with both a DWI and DWI refusal?”

Answer: A charge of Refusal to Submit to Breath Samples does not equal an “automatic conviction”, not will such a charge result in an automatic license revocation by the state of New Jersey. The State has the burden of proof as to each element of the charge, including the charge of Refusal. The State may charge both DWI and Refusal to Submit arising out of the same alleged incident.

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Question: “Are there programs that better train New Jersey police in detecting and coping with drunk drivers?

Answer: The most exhaustive and reliable testing training protocol for detecting intoxicated drivers is a course entitled “DWI Detection And Standardized Field Sobriety Testing.” The course materials were prepared from detailed research sanctioned by the United States Department of Transportation National Highway Traffic Safety Administration (NHTSA).

The course encompasses 40 hours of classroom instruction, assessment of intoxicated individuals, and a final written examination. The course teaches, among other things, cues for detecting intoxicated drivers on the roadway and more importantly, validated sobriety tests (called standardized field sobriety tests). These tests (known by the acronym SFSTs) are the one-leg-stand, the walk-and-turn, and the horizontal gaze nystagmus. Research has concluded that these three tests are the most (and only) reliable tests for assessing a b.a.c. above a .10% when they are administered and scored in the proscribed standardized manner(s).

For more information about this training, please visit:

www.njdwidefense.com/sobriety.htm (Article by New Jersey DWI Defense Lawyer, Greggory M. Marootian, Esq. (who is NHTSA trained in administering SFSTs) regarding standardized field sobriety tests).

www.nhtsa.dot.gov/people/injury/enforce/DESKBK.html#SFST (NHTSA official site and reference information regarding SFSTs).

www.ctr.usf.edu/sg/sober/drunktst.htm (US Department of Transportation Cues for Detecting Drunk Drivers at Night)

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Question: What are the chances of me either being put in jail or the slap program for a blood sample showing my b.a.c. @.36? I’m nervous and I was advised to get a lawyer, but would that be unwise to plead not guilty at the arraignment?

Answer: A high blood alcohol concentration (b.a.c.) such as the one alleged here by the State is almost always considered an “aggravating” circumstance to courts when deciding on a sentence (upon a finding of guilt or a plea of guilt). This means that most courts will be inclined to impose a sentence beyond the minimums allowed by New Jersey law.

A few general comments: (1) You should immediately retain Counsel – let your Attorney speak for you at this point (do not say a word to the Judge, Prosecutor, or Court Personnel – let your Attorney do your talking for you at this early stage), (2) You can always change your plea to Guilty after the Arraignment – a Not Guilty Plea is almost always the advisable course at an Arraignment (but again, you should speak with Counsel), (3) Sentencing will occur only if you plead guilty or are found guilty – Counsel can determine the strength of the State’s case against you and advise you accordingly, (4) If you are going to be found guilty, or if you go to trial with the possibility of being found guilty, your Counsel can plan and advocate on your behalf to attempt to minimize the penalties (this is an art which would depend on your individual circumstances, the court, and the facts in your case).

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Question: My son has been charged for dwi. I think this will be his third time. He was charged when he was 18 then again when he was 25 and now for the third time at 33 will this count for his third offense or second?

Answer: The law in New Jersey is this: “[I]f a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.” see N.J.S.A. 39:4-50(a)(3).

The exclusion of prior DWI convictions is sometimes referred to as a “step down.” In order for a third offender to be entitled to a “step down” (to second offender status), there must be a ten year gap between second and third offenses.

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Question: Is it true that if you have an out of state license and are stopped in NJ for DUI, that you are issued a NJ license on the spot and it is immediately suspended so that you CANNOT drive in NJ until the surcharge is paid to the state?

Answer: No, New Jersey does not impose an “immediate” license revocation (or revocation of driving privileges) when a driver is merely charged with DWI (N.J.S.A. 39:4-50). There is misinformation floating around the Internet in this regard which suggests that New Jersey will impose a revocation before a DWI charge is adjudicated.

If and when the person is found guilty of the offense (or pleads guilty), the Court will then impose a mandatory revocation of NJ driving privileges. The NJ conviction will also be shared with the State where the person is licensed, and that State will generally take administrative action against the person’s privileges (e.g., loss of privileges in that State).


Call on New Jersey DWI lawyer, Greggory M. Marootian when you need experienced professionals to give you the facts, and restore your integrity.




  • “Greggory M. Marootian, Esq.”

    “Greggory M. Marootian, Esq.”