A Driving While Intoxicated (DWI) charge is a serious offense which can result in significant consequences. The U.S. Supreme Court recently issued a decision which may apply if you or someone you know is charged with drunk driving.
A DWI conviction in this state is treated differently from many other criminal matters. It is a motor vehicle offense rather than an indictable crime, which means it is heard in municipal court and there is no right to a jury trial. That procedural classification does not mean the consequences are light. A first conviction can carry license loss, fines, mandatory ignition interlock, intoxicated driver resource center attendance, insurance surcharges, and in some cases jail time. The conviction stays on your driving record permanently and can be used to enhance penalties for any future offense.
Missouri v. McNeely is a Supreme Court decision decided April 17 which says, “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”
The Court also noted, “though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.”
What Missouri v. McNeely Means for New Jersey Drivers
The McNeely decision was significant because it rejected the argument that the dissipation of alcohol always justifies a warrantless blood draw. Before McNeely, police in many states drew blood from suspected drunk drivers without first seeking a warrant, relying on the body’s metabolism of alcohol as automatic justification. The Supreme Court closed that shortcut. Officers must now seek a warrant for a blood draw unless they can demonstrate genuine exigent circumstances specific to the case in front of them. The natural fact that blood alcohol declines over time is not enough on its own.
New Jersey courts have applied this principle in cases where blood was drawn without consent and without a warrant. Suppression of the blood evidence often follows when the State cannot show why a warrant was impractical given the circumstances. With modern technology, a warrant can frequently be obtained by phone or electronic means within minutes, which has narrowed the situations where exigency arguments succeed.
This is the kind of constitutional analysis that requires a defense lawyer who looks at every step of the investigation. The traffic stop. The basis for the stop. The administration of field sobriety tests. The probable cause for arrest. The handling of breath samples or the manner of any blood draw. Each step has rules attached to it, and a violation at any step can have consequences for the admissibility of the evidence.
How New Jersey Defines and Proves DWI
New Jersey’s DWI statute is N.J.S.A. 39:4-50. The State can prove the offense in two ways. The first is the per se theory, which is established when the driver’s blood alcohol concentration is 0.08 percent or higher. The second is the observation theory, which can support a conviction even when the BAC is below 0.08 percent if the State proves that the driver’s faculties were impaired to the point where safe operation of the vehicle was compromised. Both theories are routinely used, and a single case often involves both.
For drivers under 21, the per se threshold drops to 0.01 percent under N.J.S.A. 39:4-50.14. For commercial drivers operating a vehicle that requires a CDL, the threshold is 0.04 percent. School bus drivers face stricter requirements still. The standards are different because the legislative policy treats different categories of drivers as bearing different responsibilities.
The observation theory rests on what the officer saw. Bloodshot eyes, slurred speech, the smell of alcohol on the breath, performance on field sobriety tests, and statements made at the scene all support an observation-theory conviction. A defense built around the per se BAC alone misses half the case. The defense must also address the officer’s observations and challenge the reliability of those observations where possible.
Penalties That Apply After a Conviction
A first offense for a BAC between 0.08 and 0.10 percent carries a fine, a possible jail term of up to thirty days, mandatory attendance at the Intoxicated Driver Resource Center, and license forfeiture until an ignition interlock device is installed. Under the 2019 reform of the statute, most first-time offenders no longer face an outright license suspension if they install an interlock device on their vehicle. The interlock typically must remain installed for three to six months for a first offense in this BAC range, and longer for higher BAC ranges or repeat offenses.
A second offense within ten years of the first carries far more severe consequences. The fines are larger, the license loss is meaningful, the interlock requirement extends, and a jail term of two to ninety days becomes mandatory. The first 48 hours of any jail time on a second offense cannot be suspended. A third or subsequent offense carries a 180-day jail sentence, of which only ninety days can be served in an inpatient rehabilitation program, an eight-year license loss, an interlock requirement for two to four years after restoration, and significant fines.
Insurance surcharges are imposed for three years on top of the criminal penalties. A first offense triggers a $1,000 annual surcharge for three years. A third offense triggers a $1,500 annual surcharge for three years. These payments are independent of the fines imposed by the court and continue regardless of whether the driver still owns a vehicle.
Refusal to Submit to a Breath Test
New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, provides that any driver on a public road in this state has impliedly consented to submit to a breath test when arrested for DWI. Refusing the breath test is a separate offense charged under N.J.S.A. 39:4-50.4a and carries its own penalties. A first refusal carries license forfeiture pending interlock installation, an interlock requirement of nine to fifteen months, a fine, and mandatory attendance at the Intoxicated Driver Resource Center.
A refusal charge can be sustained even if the driver is acquitted of the underlying DWI. The two charges are independent. The State must prove that the officer had probable cause to arrest, that the officer read the Standard Statement informing the driver of the consequences of refusal, and that the driver then refused. A “conditional” refusal where the driver says he will take the test only after speaking with a lawyer is still treated as a refusal. The driver has no constitutional right to consult counsel before deciding whether to submit to the breath test, although a lawyer can be helpful at every other stage.
Challenging the Evidence
The Alcotest 7110, the breath testing device used in New Jersey for many years, is subject to detailed calibration and procedural requirements established in State v. Chun. The State must show that the device was properly calibrated, that the officer administering the test was certified, that the operator observed the driver for the required twenty-minute observation period before the test, and that the test produced two readings within the required tolerance. Failure on any of these points can result in suppression of the breath result.
Field sobriety tests have their own requirements. The Horizontal Gaze Nystagmus test, the Walk and Turn, and the One Leg Stand each have specific administration protocols developed by the National Highway Traffic Safety Administration. An officer who modifies the test, who fails to instruct the subject properly, or who scores the test incorrectly produces evidence that is less reliable than the State will argue at trial. Many of these tests are also affected by physical conditions unrelated to alcohol, such as back or knee injuries, inner ear problems, or simply being on an uneven surface.
The traffic stop itself is the first place to look. Police need reasonable, articulable suspicion that a traffic violation has occurred or that criminal activity is afoot before pulling a driver over. A stop based on a hunch, on a vague tip, or on conduct that does not actually violate any law can be challenged. If the initial stop fails, everything that follows is generally suppressed, including any evidence of intoxication.
Drug-Related DWI Charges
The same statute that prohibits driving under the influence of alcohol also prohibits driving under the influence of any narcotic, hallucinogenic, or habit-producing drug. Marijuana, prescription medications, and over-the-counter drugs taken in combination with other substances can all support a DWI charge. Drug DWI cases are typically proved through the testimony of a Drug Recognition Expert, an officer with specialized training in identifying signs of drug impairment. DRE evaluations follow a twelve-step protocol that produces an opinion about the category of drug impairing the driver.
DRE testimony has been the subject of significant litigation in New Jersey. The Supreme Court in State v. Olenowski addressed the admissibility of DRE evidence and established a framework for evaluating its reliability. The result is that DRE testimony is admissible, but it is also subject to challenge through cross-examination, expert witnesses, and motions to exclude unsupported portions of the opinion.
What to Do After an Arrest
The arrest is the beginning of the case, not the end. Within hours, the driver typically will be released and given a date to appear in municipal court. The first appearance is usually scheduled within a few weeks of the arrest. At the first appearance, the court confirms the charges and ensures the driver is represented. Discovery is exchanged between the prosecutor and defense in the following weeks. Pretrial motions, including motions to suppress evidence, are heard before trial.
Speaking with a New Jersey Criminal Defense Attorney before the first court appearance is the most useful step you can take. A lawyer can review the discovery, identify weaknesses in the State’s case, decide whether a motion to suppress is worth filing, and negotiate with the prosecutor for an appropriate resolution where one is possible. DWI cases in New Jersey are not eligible for Pretrial Intervention, and plea bargaining on the DWI charge itself is highly restricted under court rules. The defense work is therefore focused on the evidence itself rather than on diversionary alternatives available in other types of cases.
Common Mistakes Drivers Make
The most common mistake is talking too much at the scene. Anything said in response to officer questions becomes part of the record. Answers about how much was consumed, when the last drink was, and where the driver was coming from are routinely cited in police reports and used at trial. A polite refusal to answer questions beyond identification is appropriate. The right to remain silent applies at a traffic stop as much as anywhere else, even though no formal Miranda warning has been given.
Another common mistake is treating the matter as routine. Some drivers assume that because DWI is a motor vehicle offense it will resolve quietly with a fine and a brief license issue. That assumption underestimates the long-term effects of a conviction. License loss affects employment, child custody, and insurance for years. CDL holders can lose their commercial license over an off-duty DWI in a personal vehicle. Non-citizens can face immigration consequences. Healthcare professionals, teachers, and others with professional licenses can face board action. The stakes warrant serious preparation, not a quick resolution.
Every story has at least two sides – you need the aggressive, experienced voice of attorney Anthony Carbone. He believes in justice and is prepared to fight for your rights.
If you are facing drunk driving charges in New Jersey, please contact the Law Offices of Anthony Carbone, P.C. today to schedule a free consultation