Did you get a DUI you didn’t deserve?
So you went to a New Year’s Eve bash and you had a great time. But, knowing you had to drive home at the end of the night, you stayed sober, having only one drink. When driving home, a police officer pulls you over and says he detects alcohol on your breath. You do the field sobriety test and took a breathalyzer. The officer insists you were over the limit and arrests you for DUI. Now what?
The scenario plays out somewhere in New Jersey every weekend. The driver is not necessarily intoxicated. The officer may have probable cause for the stop, but probable cause for an arrest is a different question. A skilled defense attorney looks at every step of the encounter to identify where the State’s case begins to fall apart.
The breath test result that produced the arrest is not the final word on the case. Breath testing devices have an inherent margin of error and a long list of conditions that have to be met before the result is admissible in court. The field sobriety tests are scored according to protocols the officer may or may not have followed correctly. The stop itself has to be supported by reasonable, articulable suspicion of a traffic or criminal violation. A failure at any one of these stages can mean the difference between a conviction and a dismissal.
As we have stated before, New Jersey has some extremely strict punishments for those who drive drunk, even if you are a first time offender. These offenses include jail time, fines, and even a suspended license. And unlike other cases, there are no plea bargains in a DUI case. In order to avoid the punishment, your lawyer will need to get the case dismissed.
What “No Plea Bargain” Actually Means
The no-plea-bargain rule comes from a court directive issued decades ago and reinforced repeatedly since. Prosecutors in New Jersey cannot reduce a DWI charge to a lesser offense like reckless driving as part of a plea negotiation. This rule sets DWI cases apart from almost every other type of case in the system. A criminal defendant facing serious indictable charges can usually negotiate a plea to a lesser offense in exchange for cooperation, accountability, or a guilty plea. A DWI defendant cannot.
The practical effect is that defense strategy in a DWI case is almost entirely focused on the evidence rather than on negotiation. Either the State proves the charge or it does not. There is no middle ground. The decision to fight the case is therefore a decision to win the case, because losing means the full set of statutory penalties applies with no negotiated reductions.
The narrow exceptions to this rule involve cases where the State cannot prove an element. A prosecutor may decline to prosecute, downgrade certain related charges that are not the DWI itself, or accept a guilty plea to a lesser-included offense in some narrow circumstances. None of these is a true plea bargain in the conventional sense. They are concessions the prosecutor makes when the proof is weak.
But is there a way you can fight the charge? Of course! Here at the Law Offices of Anthony Carbone, we will investigate your case. We’ll question the police and get to the bottom of why you were singled out for a DUI. Anthony Carbone has more than 25 years handling DUI cases in Hudson and Essex counties and he will fight for your rights. So contact us today for a free consultation.
Where DUI Cases Are Won
The traffic stop is the first place to look. New Jersey law requires officers to have 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, a vague tip, or conduct that does not actually violate any law can be challenged. Touring police cars look for specific cues: weaving within a lane, abrupt changes in speed, failure to maintain lane, equipment violations, expired registration. The cue cited in the police report has to actually match what the dashcam video and the officer’s testimony will support. When it does not, a motion to suppress can dismantle the State’s case before the trial begins.
The field sobriety tests are the second place. 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. The officer must instruct the driver properly, demonstrate the test if appropriate, and score the test according to the manual. Modifications, poor instruction, or incorrect scoring all reduce the reliability of the result. Conditions completely unrelated to alcohol, such as inner ear disorders, back or knee injuries, fatigue, certain medications, and uneven test surfaces, can also produce performance the officer mistakes for impairment.
The breath testing device is the third place. New Jersey police primarily used the Alcotest 7110 for many years, and the Supreme Court in State v. Chun set detailed requirements for the calibration, administration, and certification of the device. 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.
For drivers tested through a blood draw rather than a breath test, the U.S. Supreme Court decision in Missouri v. McNeely controls. The natural dissipation of alcohol in the bloodstream is not by itself enough to justify a warrantless blood draw. The State must show genuine exigent circumstances specific to the particular case, or it must have obtained a warrant. Blood evidence drawn without a warrant in routine circumstances can be challenged and suppressed.
What the Officer Did Not Tell You
Drivers caught up in a DWI investigation often do not realize what their rights are at the scene. You are not legally required to perform the field sobriety tests. Politely declining is not, by itself, evidence of intoxication. You are not legally required to give a recorded statement about how much you had to drink, where you were coming from, or when you had your last drink. The Fifth Amendment right against self-incrimination applies at a traffic stop, even though no Miranda warning has been read.
The breath test at the police station is different. New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, provides that every driver on a public road has consented in advance 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. You do not have a right to consult counsel before deciding whether to submit. A “conditional” refusal where the driver says he will take the test only after speaking with a lawyer is treated as a refusal. The right approach is to take the breath test and then challenge the result.
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.
A first offense with a BAC of 0.10 percent or higher carries more significant interlock obligations and longer periods of compliance. A second offense within ten years of the first triggers mandatory jail time, a longer interlock period, and substantial fines. 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, an eight-year license loss, and an interlock requirement of two to four years after the license is restored.
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. These payments are independent of the fines imposed by the court and continue regardless of whether the driver still owns a vehicle.
Why an Attorney Matters in a DUI Case
The State has the burden to prove the case beyond a reasonable doubt. Almost every step of a DUI investigation can be challenged when an experienced defense attorney looks at the discovery. The dashcam and bodycam footage. The Alcotest records and calibration documents. The breath test ticket. The training and certification records for the arresting officer and the Alcotest operator. The dispatch logs. The Department of Motor Vehicles records that may show whether equipment was malfunctioning in the days before the stop.
A skilled New Jersey Criminal Defense Attorney knows what to ask for in discovery, what to look at when the records arrive, and what motions to file when the records show the State’s case has holes. Most DWI cases that are won, are won on motion practice. A successful motion to suppress the breath test or the field sobriety tests often ends the case before it reaches trial.
Collateral Consequences Beyond the License Loss
A DWI conviction in New Jersey is not just a motor vehicle offense. It has consequences in many other parts of life. Auto insurance rates increase significantly, often by hundreds or thousands of dollars per year. Professional licenses can be affected. Healthcare workers, teachers, attorneys, and others with state licenses are required to report the conviction and may face board action.
Commercial driver’s license holders face the loss of their CDL even when the DWI occurred in a personal vehicle on personal time. A CDL holder convicted of a first DWI loses the CDL for one year. A second conviction can mean lifetime disqualification.
Non-citizens face immigration consequences depending on their status. A DWI is generally not a crime of moral turpitude or an aggravated felony, but DWIs with aggravating factors, multiple convictions, or related drug or alcohol offenses can trigger removal proceedings.
Background checks for employment, housing, and certain volunteer activities pick up the conviction. The motor vehicle record stays in place permanently and can be used to enhance penalties for any future DUI arrest, no matter how many years later.
Common Mistakes Drivers Make
Talking too much at the scene is the most common mistake. 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.
Attempting to perform the field sobriety tests when you are not sober enough to recognize that your performance will be used against you is another. The tests are designed to look for impairment. An officer who has already decided to arrest is unlikely to be persuaded by even a strong performance, but a poor performance gets video-recorded and used as evidence at trial.
Refusing the breath test in the belief that it eliminates the case is a third mistake. Refusal is a separate charge with its own significant penalties. The refusal charge can be sustained even when the underlying DWI is dismissed. Submitting to the breath test and then challenging the result later is generally the better approach.
Treating the case as routine is the fourth. 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.
Questions Drivers Often Ask
Can my DUI be expunged?
DWI convictions in New Jersey cannot be expunged. The conviction remains on the driver’s motor vehicle record permanently. This is one of the reasons the case is worth fighting at the initial stage rather than accepting a conviction and trying to clear the record later.
What if I was over the limit but only by a tiny amount?
The 0.08 threshold is a per se rule. Any BAC of 0.08 or higher supports a conviction under the per se theory, regardless of how slightly over the limit you were. The defense in this situation typically focuses on the reliability of the breath test rather than on the BAC itself.
What about marijuana DUIs?
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 cases are typically proved through Drug Recognition Expert testimony rather than breath testing. The Supreme Court in State v. Olenowski has addressed the admissibility of DRE testimony and set a framework for evaluating it. These cases are technical and require defense work that goes beyond what a typical alcohol DWI case requires.
How long do I have to act?
The case will move quickly. The first municipal court appearance is typically scheduled within a few weeks of the arrest. Discovery is exchanged shortly after. Motions to suppress are filed and heard before any trial date. Retaining counsel within the first weeks of the case is essential to preserve evidence and prepare the defense.
For more information on DUI, click here.