Evan M. Levow

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Frequently Asked Questions in New Jersey DWI Cases

  1.  Is it possible to defend against a DWI?
    There are many ways to defend against a DWI charge. If arrested for DWI, you should contact an attorney as soon as it is feasible to do so.

  2. What penalties does New Jersey impose for DWI?
    Penalties for a DWI conviction vary in severity depending on whether the conviction is for a first offense or repeated offense. On a first offense charge, the possible penalties include fines of $250 to $400, possible jail time of no more than 30 days, and required attendance of alcohol awareness classes provided through the Intoxicated Driver Resource Center (IDRC) for anywhere from 12 to 48 hours. The IDRC classes cost $100 in addition to fines for the charge itself and fees of $50 and $75 for the Violent Crimes Compensation Board (VCCB) and Safe Neighborhood Fund Assessment, respectively. In addition to all of the above, your New Jersey driver’s license will be suspended or revoked for three months if the breath/blood alcohol content is under 0.10%, and seven to twelve months if the breath/blood alcohol content is 0.10% or above.  If the reading is 0.15% or above, an ignition interlock device must be installed on any car that is driven by the individual for 6 to 12 months.  If the violation occurs in a school zone, penalties double.  There is also a $3,000.00 surcharge payable to the State, and surcharges payable to the driver’s insurance company.

    Second and third DWI convictions can carry as much as $1,000 fines, the same amount of hours and costs for alcohol awareness classes, the VCCB and the Safe Neighborhood Fund Assessment, plus mandatory community service for a second offense, variable amounts of jail time and loss of driving privileges. For a second offense, you can be jailed for a minimum of 48 hours and a maximum of 90 days, and you will not be able to legally drive in New Jersey for two years. In addition, you will have 30 days of required community service. On a third conviction and any others beyond that, the jail term becomes a mandatory 180 days, with the possibility of doing 90 of those 180 days in an in-patient rehabilitation facility.  For a third conviction, the driver’s license will be revoked for 10 years. These penalties are for the DWI charge only and could be assessed in addition to penalties for any other concurrent convictions.  For second and greater violations, an ignition interlock device must be installed on any car driven by the convicted offender for 1 to 3 years after the license has been restored.

  3. If asked to submit to a breath test, can I refuse?
    You can refuse, but you will be charged with a violation for doing so.  According to New Jersey statute, you do not have the right to refuse a breath test, without possible penalty. In New Jersey, the operation of a motor vehicle on any public or semi-public road, street, highway, or other area carries an implied consent to submit to a breath test if there is reason to believe that there may be alcohol in the blood in excess of the legal limit.

  4. If I choose to refuse the breath test anyway, do I have options for a defense?
    You may have some options for a viable defense of your refusal to submit to the breath test.  There are defenses to refusal.  If you find yourself in this situation, you should contact our offices following an arrest so that we can discuss your case and decide on the best course of action going forward.

  5. Are the penalties the same for refusal to submit to a breath test as for DWI?
    While not exactly the same, the penalties are similar if convicted of either charge. Any offense will result in a fine of $250 to $500, with a first offense resulting in a 7 to 12 month suspension of driving privileges.  An ignition interlock device must be installed for 6 to 12 months following the restoration of driving privileges. The second and third offenses increase the suspension of driving privileges to two years and 10 years, respectively, and a prior conviction for a similar charge in another jurisdiction will count as a prior offense when determining penalties in New Jersey.  Ignition interlock must be installed on second and third offenders’ vehicles for a period of 1 to 3 years following license restoration.

  6. What happens if I am convicted of both charges, refusal and DWI?
    If that happens, your sentences for each of the violations will be levied separately and consecutively rather than concurrently for second and greater offenses.  This is also possible for a first offense. To put it another way, your penalties could potentially double.

  7. What are the penalties if I am found guilty of DWI within 1,000 feet of school property or of a school crossing zone?
    Penalties are more severe than for a general DWI conviction if you are convicted of DWI in close proximity to any type of school property. The first time you are convicted of this offense, a fine of $500 to $800 will be assessed, along with up to 60-days in jail and loss of driver’s license for a minimum of one year and a maximum of two years. Second and third offenses in a school zone, where the prior offenses also occurred in a school zone, increase the amount of the fines assessed to $1,000 to $2,000 on a second offense and $2,000 for a third offense. In addition, the second offense carries a mandatory jail sentence of 96 hours to as much as 180 days and mandatory community service over the course of 60 days. The third offense carries a mandatory jail sentence of 180 days, with the possibility of having the jail time lowered by performing a corresponding number of days of community service. The second offense also results in loss of legal driving privileges for four years, while a third offense results in the inability to legally drive in New Jersey for 20 years.

    Stating that you were unaware that you were within 1,000 feet of school property or a school crossing or that there were no juveniles present at the time is not an adequate or reasonable defense for the charges. You also cannot rely on a defense that states that school was not in session at the time of the DWI incident.

  8. What additional penalties, if any, would I incur if I am convicted of both refusal to take the breath test and of DWI within 1,000 feet of school property?
    If found guilty of both charges, fine amounts would increase by $500 to $1,000, the amount of time that you will be without legal driving privileges increases by one year for the first offense, an additional four years for the second offense and as much as 20 years for the third offense. As previously noted, the period of suspension of driving privileges begins only after completion of any jail or prison time.

  9. What happens if my driver’s license was already suspended or revoked when I was stopped for DWI?
    If convicted, you will have an additional fine of $500, an additional one to two years without driving privileges, and a jail sentence of 10 days minimum with over 90 days possible.

  10. What about having a suspended or revoked license and being stopped for DWI or refusal within close proximity of school property, as described above?
    If convicted, you will once again be fined for an additional $500, lose driving privileges for one to two more years, and face a jail sentence of 60 to 90 days for the first conviction, 120 to 150 days for the second conviction, and 180 days for the third or subsequent conviction.

  11. If my driver’s license was issued in a state other than New Jersey, do I lose my license in my home state as well?
    Loss of driving privileges in your home state is not automatic. However, this is a fairly complicated situation and one that should be discussed with an attorney experienced in handling DWI cases.  Most states issue separate suspensions if you are convicted in a state other than where you are licensed.

  12. After the suspended driving privileges period has passed, is my license automatically reinstated?
    Driving privileges are not restored automatically. A fee of $200, paid to the MVC, is required to restore your driver’s license.

  13. If sentenced to jail time, do I have any other choices other than spending time in jail?
    You may have other options on first and second offenses.  For third or greater offenses, you must go to jail for 180 days, however, 90 days can be served in an in-patient drug or alcohol rehabilitation facility. We urge you to call us after being charged with DWI so that we can discuss the alternatives as soon as possible.

  14. If I have prior DWI convictions, can I have them overturned or nullified so that they do not affect a current arrest?
    There is a possibility of having prior convictions not considered in a current case.  This is called Post Conviction Relief. You would have to go back to the original court and seek to have the case reopened or argue that the conviction cannot be used to put you in jail in any current or future matter. Again, we urge you to call us as soon as possible after being arrested for DWI so that alternatives can be considered as soon as possible.

  15. If I have a DWI or DUI conviction in a different state, is it considered a prior offense for the sake of my current situation?
    Yes, but only if that other conviction was based solely on having a blood alcohol content of .08% or more before getting behind the wheel.  Most state’s laws comply with this, but it has to be for a conviction for DWI/DUI.  In other words, if you had the benefit of a diversionary program and were not actually convicted of the DWI offense, that would not be considered a conviction.

  16. If I already have a suspended or revoked license when convicted for DWI, when does the additional suspension time begin?
    Any loss of driving privileges prescribed as part of the current DWI conviction will start after the original suspension or revocation period ends.  Suspension is consecutive.

  17. Does a prior DWI conviction from more than 10 years ago count as a previous offense with regard to sentencing on a current conviction?
    DWI convictions for a first and second offense that occur more than 10 years apart will be treated as unrelated when sentencing for the second conviction. In this case a second conviction will be sentenced as a first offense. However, a third conviction that occurs more than 10 years after the second conviction will be sentenced as a second offense rather than another first.

  18. Can the IDRC require me to undergo additional counseling or classes?
    You are required to comply with the screening, evaluation, and referral programs and payment of fees 1) of the Division of Alcoholism and Drug Abuse’s Intoxicated Driving Program Unit, 2) of the IDRC’s, and 3) of a program of alcohol and drug education and highway safety. If you do not meet minimum requirements in any of these areas, you can be required to take additional counseling or classes.

  19. What if I choose not to comply with IDRC classes or counseling recommendations?
    You will be subject to a mandatory two-day jail sentence to be spent in the county jail and a loss of driving privileges or additional loss of driving privileges until you comply with the requirements.

  20. What is the DWI law with regard to being under 21 years old?
    If underage, in addition to any penalties imposed under the usual DWI or other criminal laws, a blood alcohol concentration of between .01 percent to .08 percent will result in the loss of your rights to operate a motor vehicle in New Jersey or to get a license to drive in New Jersey for 30 to 90 days, starting on either the eligibility date for obtaining a license or the conviction date, whichever is later. You will also be sentenced to community service for 15 to 30 days and will need to satisfy the IDRC fee and program requirements.

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