Will I go to jail if I am convicted of DWI?
Most drivers will not be sentenced to jail for a first offense DWI offense unless the incident involved an accident resulting in serious personal injuries to another individual. If the driver has a high blood alcohol concentration (BAC), the judge may impose a longer period of suspension (up to one year), community service, and perhaps a higher fine. On subsequent offenses, the chances of receiving a jail term increase greatly. For a second offense, there is a mandatory jail term of no less than 2 days and not more than 90 days. For a third offense, there is a mandatory 180-day jail term, 90 of which may be served in an in-patient rehabilitation facility.
What is an ignition interlock device?
An interlock is a breath analysis device that is installed in a motor vehicle. The interlock prevents an alcohol-impaired person from starting the vehicle. Re-tests are randomly required during operation of the vehicle. The interlock system records dates, times, test results, engine runs and engine offs. The data is provided to the authorities and used to determine compliance with the interlock program.
Is an interlock device required after a conviction for DWI?
Installation of an interlock device is in the discretion of the Court for first offenders whose Alcotest results are below .15% BAC. Installation of an interlock device is mandatory:
- if a first offender's BAC is .15% or higher;
- for all second or subsequent offenders; and
- for all convictions for Refusal to Take the Alcotest.
How much does an interlock device cost in New Jersey?
Interlock device companies are privately owned, and fees may vary. However, an interlock device typically costs about $100.00 per month to rent. There is usually no fee for installation or removal.
Do I have to install the interlock device on all my vehicles?
This is a question that is open for debate. Many of my clients have been told by interlock device companies that they must install an interlock on all their vehicles. I disagree. N.J.S.A. 39:4-50.17 requires "...the installation of an ignition interlock device in the motor vehicle principally operated by the offender..."
How long do I have to keep the interlock device installed in my vehicle?
- For first offenders: During the period of suspension plus an additional six months to one year;
- For second or subsequent offenders: during the period of suspension plus an additional one to three years.
Is DWI a criminal charge in New Jersey?
While DWI is a criminal charge in most other states, it is only a traffic offense in the State of New Jersey. Unless your arrest was in connection with another criminal violation, you are not finger-printed. The record of your arrest will only show up in the Motor Vehicle Commission records, and not in any criminal data base. If you live in another state and are convicted of DWI in New Jersey, the conviction will transfer to your home state "administratively", but not criminally. There may be an additional loss of driving privileges in your home state, but you will not be prosecuted again for a criminal offense.
If my New Jersey license is suspended can I obtain a license in another state?
Unfortunately, the answer is "no." Furthermore, in most states before anyone is issued a license, they are asked if their driver’s license is currently suspended or revoked in any other state. A driver will commit fraud by making misrepresentations on application, and subject himself to criminal consequences.
If my New Jersey license is suspended can I obtain a license to go back and forth to work?
While many states allow limited driving privileges for work, religious observance, or doctor's visits, New Jersey does not allow any work or temporary driving permits or licenses. If you are convicted of a DWI in New jersey, you will not be able to drive anywhere during the period of suspension. If you are licensed in another state, the Court will suspend your privilege to drive in the State of New Jersey, but it does not have the authority to suspend your privilege to drive anywhere else unless and untill your home state suspends your driving privileges based on the New Jersey conviction.
If I was convicted of DWI in another state, does that count as a prior conviction in New Jersey for sentencing purposes?
If the out-of-state DWI conviction was based exclusively upon a violation of a proscribed blood alcohol concentration of .08% or greater, then it will be used for an enhanced sentence in New Jersey.
If I am a Pennsylvania driver, will a DWI conviction in New Jersey affect my license?
If you are a Pennsylvania driver, the New Jersey Court does not have the authority to order you to physically surrender your Pennsylvania license if you are convicted of DWI. The judge will suspend your privilege to drive in New Jersey only (and order you to serve any applicable jail sentence), and a record of your conviction will be sent to Pennsylvania. If you have never been convicted of DWI previously, the New Jersey conviction will be entered onto your Driver History, but your Pennsylvania license will probably not be suspended. Please bear in mind, that you will still be subject to insurance company surcharges. In addition, you must also pay the New Jersey surcharges of $1,000 per year for three years. If you are convicted of DWI in New Jersey, and have been previously convicted for DWI Pennsylvania, your Pennsylvania license will be suspended for a minimum of one year. If you work or travel in New Jersey, you will not be able to drive in New Jersey for the period of your New Jersey suspension, even if your home state has not suspended your license. If you are caught driving in New Jersey during your suspension period, the penalties are severe, and include a mandatory jail sentence of 10 - 90 days plus an additional suspension of driving of one-to-two years.
Can I refuse a police officer's request that I take a breath test?
A driver cannot refuse to take a breath test. By law, a driver who operates a motor vehicle on any public road, street or highway or quasi-public area in New Jersey is deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood. Before requesting that you take the breath test, the arresting officer must read you a statement advising you of your obligation to take the test, as well as the penalties for failing to do so. You do not have a right to have an attorney present when you take the test. If you refuse, the officer must give you a chance to change your mind; however, if you then refuse, you can not change your mind later, and you will be charged with both DWI and Refusal to Take the Breath Test.
What are the penalties for refusing to take a breath test?
A first offense carries a fine of $300-$500 and a mandatory license suspension of 7 to 12 months. A second offense carries a fine of $500-$1,000 and a mandatory license suspension of 2 years. A third or subsequent offense carries a fine of $1,000 and a mandatory 10-year license suspension. The above fines and suspensions are doubled if the offense occurred while on or within 1,000 feet of school property or while driving through a school crossing. The Court will also require the installation of an interlock device in your vehicle for the duration of your license suspension plus six months to one year in the case of a first offender and one to two years in the case of subsequent offenders.
What if I am charged with both DWI and Refusal to Take a Breath Test?
A driver can be sentenced for both violations, and your suspensions and potential jail time will be consecutive. In plainer terms, the penalties will be doubled. In many situations, an experienced attorney will be able to have both the DWI and the Refusal conviction to be serviced concurrently (at the same time). However, if the driver forces the Court to have a trial, and the evidence shows that the driver was extremely intoxicated, then a judge will be more inclined to impose the maximum penalties.
Is there an advantage to pleading guilty to the charge of "Refusal" instead of DWI?
There is no rule that allows you to automatically choose one charge over the other, but under certain circumstances your attorney may be able to have one charge or the orther dismissed. The penalties are essentially the same, and there is usually no advantage to pleading guilty to one charge as opposed to the other. However, sometimes there can be an advantage to pleading guilty to the charge of "refusal" if that option is available. For example, a third offender charged with both offenses would benefit by pleading to "refusal" because there is no mandatory jail sentence for "refusal" regadless of whether it is a first or subsequent offense. (There is a mandatory six-month jail sentecne if convicted as a third-time DWI offender.)
If I have a prior conviction that is more than 10 years old, can it be used by the Court as sentencing?
In most cases, DWI convictions which are more than 10 years old cannot be used by the municipal court judge at the sentencing of a DWI driver. If the second offense occurs more than 10 years after the first offense, the Court will treat the second conviction as a first offense, and if a third offense occurs more than 10 years after the second offense, the court will treat the third conviction as a second offense for sentencing purposes. Please note, however, that even if 10 years elapsed between the first and second offense, where less than 10 years elapsed between the second and third DWI offenses, the driver must be sentenced as a third offender. A fourth or greater conviction will always be treated as a third conviction for sentencing purposes, regardless of dates of conviction.
If my driving privileges are suspended or revoked at the time of my DWI, how is the additional period of suspension of time calculated?
Any additional suspension imposed in the current DWI matter will begin on the date of termination of the existing revocation or suspension period.
Can the IDRC make me take additional classes or order additional counseling?
A driver is not always automatically finished with their IRDC requirements after he has taken the two day’s worth of classes. An IDRC officer can order a driver to participate in more classes, counseling, or treatment if he feels it is necessary. As part of the sentence, a driver must satisfy the screening, evaluation, referral, program and fee requirements of the Division of Alcoholism and Drug Abuse's Intoxicated Driving Program Unit, and of the Intoxicated Driver Resource Centers and a program of alcohol and drug education and highway safety, as prescribed by the Director of the Division of Motor Vehicles.
What happens if I do not comply with the IDRC requirements?
The municipal court judge will sentence the driver to a mandatory two-day term of imprisonment in the county jail, and suspend the driver's license indefinitely until he satisfies the IDRC requirements (even if the original ordered suspension period has expired).
What if I am under 21...Are the DWI laws different?
A driver under the age of 21 who has a blood alcohol concentration of .01% or more, but less than .08%, will forfeit his right to operate a motor vehicle in New Jersey or be prohibited from obtaining a license to operate a motor vehicle in New Jersey for 30 to 90 days. The driver must perform community service for a period of not less than 15 or more than 30 days. He must also satisfy the program and fee requirements of the IDRC. These penalties are in addition to the penalties which the court may impose under the DWI and criminal laws. A municipal court judge will sentence the driver to a mandatory two-day term. A driver under the age of 21 who has a BAC of .08% or more is subject to the same fines and penalties as a driver who is 21 or older.
What are the surcharges if I am convicted of DWI?
A driver convicted of DWI must pay a surcharge of $1,000 per year for three years, or a total of $3,000. The New Jersey Motor Vehicle Commission will send you a bill in the amount of $83.00 per month for three years.
If the Court suspends my driving privilege, can I be issued a temporary or restricted license to be used for work purposes only?
Unfortunately, the answer is "no." There is no such thing as a conditional or restricted license in New Jersey, even if the driver needs one to drive to work. Most judges will issue a convicted DWI driver a one-hour temporary license to drive home.
I know I'm guilty...so what's the point in hiring a lawyer?
There are many aspects to consider in a DWI case. There may be issues surrounding the legitimacy of the stop, i.e. a police officer must have a reasonable suspicion that a crime or traffic offense was committed, or that there was some other unusual circumstance involving the operation of your vehicle. Before requesting that you take a breathalyzer test, the officer must have developed a reasonable belief that you were impaired by alcohol. There may be issues involving the accuracy of the breath test itself, i.e. the State must prove the breathalyzer was functioning properly on the date of your arrest, and the officer followed the procedures within the prescribed guidelines. There may also be other errors, omissions, or discrepancies. Finally, even if you are guilty an experienced attorney may be able to reduce your suspension time or protect you from going to jail. Please call me at (856) 216-1700 for more information.
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