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Driving While Intoxicated in New Jersey

Jan. 14, 2015

Driving While Intoxicated and driving under the influence are the same thing. These laws punish the operation of a motor vehicle while under the influence of substances-alcohol, or drugs, or both-such that your ability to operate the vehicle is impaired in any way.

There are two levels of intoxication which affect the punishment for a first offense, a blood alcohol reading of .08 and below .10, and at, or above .10. The former results in 3 months loss of license; the latter 7 months up to one year. Any offense where the intoxicating substance is drugs-of any kind, legal or illegal-results in a sentence of 7 months to 1-year loss of license.

Three things you need to know about DWI in N.J.

  1. If you are convicted of DWI you cannot drive in N.J. for any reason, including a medical emergency. There is no work license, or day license, or any other exception that permits you to drive. If you drive, you will go to jail or prison. N.J does not have a diversionary program for even first-time DWI, unlike Pennsylvania, which has ARD, and New York, which has a similar program.

For a 3 month suspension, this is manageable; for 7 months to 1 year, it is harsh. If you commit a second offense within 10 years of the first, you lose your right to drive for 2 years. If you commit a third offense within 10 years of the second, you lose your right to drive for 10 years; and you must go to jail, or prison, for 180 days. There are no credits available for this jail time such as work credits or good time credits; you go for the full 180 days.

If you are licensed in another state you may be able to get a work license if that state provides for one.

  1. You are NOT entitled to a jury trial, even for a third or subsequent offense. A town judge, for each town, appointed by the town, decides whether the prosecutor has proved his case beyond a reasonable doubt.

The town receives revenue from each conviction. Some towns select their judges based upon how much revenue they produce, and they may replace a judge for not producing enough revenue.

Further, the judge becomes quite familiar with the local police. While familiarity may breed contempt, that is rarely the case in these courts. Often the judges are quite friendly with the local police. So, if there is testimony in which you and the police disagree about a fact, guess who usually wins.

The reason N.J gets away with not giving a jury trial for DWI is that an English lawyer named Blackstone said “petty offenses “ are those which are punished by 6 months or less jail time (he said this before the Constitution was adopted). The Supreme Court approved no jury trial if the penalty is 6 months in jail or less in Blanton v. North Las Vegas, 489 U.S. 538 (1989); so, as long as the jail time cannot exceed 6 months, you are not entitled to a jury.

This is crazy. There is nothing “petty” about 6 months in jail or even 10 days. You lose your job, your wife and kids have to visit you while you sit behind bars, and yet you are not a criminal.

  1. The mandatory surcharge of $1,000 per year for three years must be paid or you will not get your privilege to drive restored; this is in addition to fines. If you don’t pay you do not get your driving privileges back, even if you are licensed outside of N.J.

I represent a woman in Florida who cannot get her Florida license restored because she is suspended for not paying her surcharge in N.J. (after a DWI conviction in N.J). She was licensed to drive in Florida, but Florida suspended her driving privileges for not paying N.J.’s surcharge when N.J. found her. N.J., like most states, is hungry for revenge and will look for you wherever you live.

The sole remedy is a chapter 13 bankruptcy which may discharge your obligation to pay surcharges.

There are other severe consequences for DWI in N.J. which I will cover in another blog.

Mitchell E. Ignatoff, Esq.

Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney.