It’s the end of 2014. And to celebrate the coming of 2015, you may be going out on the town tonight, just like everyone else. The Law Offices of Anthony Carbone wishes everyone will stay safe this evening and whatever you do, don’t drink and drive!
The increase in enforcement during the holiday season is real. Sobriety checkpoints, saturation patrols, and added enforcement on roads leading away from bars and restaurants all expand during the period between Thanksgiving and New Year’s Day. Officers know where the crowds are, and they staff the roads accordingly. A driver who would never be stopped on an ordinary Tuesday night may face very different conditions on December 31. The smartest decision is the one made before the first drink, not the one made when the keys are in your hand at midnight.
To make sure your New Year’s Eve stays fun, here are some tips to keep in mind if you plan on going out this evening:
- Always plan ahead and choose a designated driver. Make sure that person doesn’t drink one drop of liquor all night. (Be appreciative and buy him/her a soda or water!)
- If you drink too much and don’t have a driver, make other arrangements. Try calling for a taxi or sign up for Uber. Whatever you do, don’t get behind the wheel of a car!
- If a friend is drunk and ready to drive home, make sure to take away the car keys. Your friend may be angry, but will thank you in the morning.
- Remember to drink some water in between your cocktails. Not only will this help with the hangover the next morning but you won’t get too intoxicated.
- Are you in a bar that’s starting to get a little scary? It’s true, when people drink, emotions are heightened. If you feel unsafe, trust your gut and get out .
- And if you really don’t want to deal with the crowds, just stay home! If you drink at home, you won’t have to worry about driving anywhere. Invite some friends over and let them know they are welcome to stay.
What Actually Happens If You Are Stopped
The traffic stop is the beginning of a process that moves quickly. Once the officer suspects intoxication, the questions become focused on alcohol consumption: where you were, what you had to drink, and how much. The driver is asked to step out of the vehicle. Field sobriety tests follow. A portable breath test at the roadside may be administered, although the result of the portable device is not admissible at trial in New Jersey. The decision to arrest is typically made within minutes of the initial encounter.
After arrest, the driver is taken to the police station for the Alcotest, the breath testing device used in this state. New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, requires every driver on a public road to submit to the breath test when arrested for DWI. Refusing the test is a separate charge under N.J.S.A. 39:4-50.4a with its own significant penalties. The penalty structure for refusal closely tracks the penalty structure for DWI itself, so refusing does not eliminate the consequences.
You do not have the right to consult an attorney before deciding whether to take the breath test. A “conditional” refusal where the driver says he will take the test only after speaking with a lawyer is treated as a full refusal. The general advice is to take the breath test and challenge the result later, when proper challenges to the device’s calibration, the operator’s certification, and the procedural requirements can be raised in court.
What Counts as Drunk Driving Beyond Alcohol
New Jersey’s DWI statute, N.J.S.A. 39:4-50, prohibits operating a motor vehicle while under the influence of alcohol, any narcotic, any hallucinogenic, or any habit-producing drug. The legal limit for alcohol is a blood alcohol concentration of 0.08 percent or higher. A driver can be charged under the alternative theory of impairment when alcohol consumption produced impairment regardless of the BAC reading, although in practice charges almost always proceed on the per se 0.08 theory.
Marijuana-related DWI charges have become more common since recreational use was legalized in this state. The statute does not establish a numerical threshold for marijuana the way it does for alcohol. Cases instead proceed on the impairment theory and are typically supported by testimony from a Drug Recognition Expert, an officer certified to evaluate drug impairment using a standardized protocol. The New Jersey Supreme Court in State v. Olenowski addressed the admissibility of DRE testimony and set a framework for evaluating it. These cases require defense work that goes beyond what a typical alcohol DWI case requires.
Prescription medications can also support a DWI charge when they impair the driver’s ability to operate a vehicle safely. The fact that the medication was lawfully prescribed is not a defense if it produced impairment.
What Penalties Apply After a Conviction
A first DWI offense for a BAC between 0.08 and 0.10 percent carries a fine, a possible jail sentence of up to thirty days, 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 remains installed for three to six months for a first offense.
A first offense with a BAC of 0.10 percent or higher carries longer interlock obligations and higher fines. 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 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 on top of the criminal penalties. A first offense triggers a $1,000 annual surcharge for three years. These payments continue regardless of whether the driver still owns a vehicle. Auto insurance premiums can also increase significantly after a conviction, often by thousands of dollars per year.
The DWI conviction cannot be expunged from your record. It remains on the motor vehicle record permanently and can be used to enhance penalties for any future DWI arrest, no matter how many years pass between offenses.
Other Charges That Surface on New Year’s Eve
DWI is not the only charge that arises on holiday nights. Bar fights are common, and what may have started as raised voices can escalate to charges of simple assault, aggravated assault, terroristic threats, or disorderly conduct. Simple assault is a disorderly persons offense under N.J.S.A. 2C:12-1, while aggravated assault rises to an indictable offense when the attack causes serious bodily injury, involves a weapon, or targets specific protected categories of victims.
Open container charges may follow drivers and passengers leaving an event with unfinished alcohol in the car. New Jersey’s open container law, N.J.S.A. 39:4-51a and following, prohibits drinking or having an open container of alcohol in the passenger compartment of a motor vehicle on a public roadway. The offense carries fines and is enforced more aggressively during holiday periods.
Disorderly conduct charges under N.J.S.A. 2C:33-2 are commonly issued at holiday events for fighting, threatening behavior, or unreasonably loud conduct. The offense is a petty disorderly persons offense but carries a criminal record and fines.
Underage drinking offenses under N.J.S.A. 2C:33-15 apply to anyone under twenty-one years of age caught consuming or possessing alcohol in a public place or motor vehicle. The penalties include fines, community service, and a six-month license suspension or delay in driving eligibility.
Drug possession charges can also surface when officers conduct a search incident to arrest. Recreational marijuana is legal for adults in New Jersey, but cocaine, heroin, methamphetamine, MDMA, and various synthetic drugs remain controlled. Possession of these substances supports indictable charges that carry serious consequences far beyond what an ordinary DWI involves.
If Impaired Driving Hurts Someone Else
When alcohol-impaired driving leads to a crash, the consequences expand dramatically. Drivers who cause serious injury or death while intoxicated can face indictable charges of assault by auto under N.J.S.A. 2C:12-1(c) or vehicular homicide under N.J.S.A. 2C:11-5. These are not motor vehicle offenses. They are felonies with prison terms and lasting consequences.
Civil liability also follows. The injured party or the family of a deceased victim can bring claims for personal injury or wrongful death. These claims often include punitive damages because of the egregious nature of impaired driving. Dram shop claims may also be brought against bars or restaurants that served alcohol to a visibly intoxicated patron who then caused a crash. The dram shop theory creates an additional layer of liability and an additional source of insurance recovery for the victim.
What to Do If You Are Stopped
Pull over promptly when the officer signals. Find a safe location, turn off the engine, and place your hands on the steering wheel where the officer can see them. Wait for the officer to approach. Producing license, registration, and insurance is required when requested.
Be polite but careful with what you say. The officer’s question about how much you had to drink is not a casual question. Anything you say will appear in the police report and will be used at trial. The Fifth Amendment right against self-incrimination applies at the traffic stop, even though no Miranda warning has been given. You can decline to answer questions about alcohol consumption while remaining cooperative on identification.
You are not legally required to perform the field sobriety tests. Politely declining is not, by itself, evidence of intoxication. The tests are designed to look for impairment and to produce evidence the State will use against you at trial. Some defense attorneys recommend declining the roadside tests on the theory that a poor performance can only hurt you while a strong performance is unlikely to prevent the arrest.
Do submit to the breath test at the station. The refusal charge carries penalties that closely track the DWI penalties, and the refusal can be sustained even when the underlying DWI is dismissed. Submitting and challenging the result later is generally the better approach. A skilled New Jersey Criminal Defense Attorney can identify defects in the breath test administration, the device’s calibration, and the officer’s certification that can lead to suppression of the result.
After an Arrest
Call an attorney as soon as you are released. The first court appearance, called a first appearance in DWI cases, typically occurs within a few weeks of the arrest. Discovery is exchanged shortly after. Motions to suppress evidence, if appropriate, are filed and heard before any trial date. Retaining counsel within the first weeks preserves evidence, identifies witnesses, and gives the defense the time it needs to develop the case.
The dashcam and bodycam footage of the stop is critical evidence. The footage usually shows the driving that led to the stop, the field sobriety tests, the statements made at the scene, and the conduct of the arresting officer. Police departments have varying retention policies for this footage, and a preservation request from defense counsel ensures that the footage is not destroyed in the routine course of business.
The Alcotest discovery includes calibration records for the device, certification records for the operator, the breath test ticket showing the actual readings, the foundational documents required by State v. Chun, and the New Jersey State Police Alcohol Influence Report. Each document is reviewed for compliance with the procedural requirements set by the Supreme Court. Missing or defective documents support motions to suppress the breath test result.
Common Mistakes After an Arrest
Talking about the case publicly is the most common. Social media posts, conversations with coworkers, and discussion with family members can all become evidence the prosecution uses. Anything you said the night of the arrest, including casual remarks to friends or to police officers, may be used against you in court.
Posting about the night of the arrest on social media is particularly damaging. Photographs of yourself at the event, statements about how much was consumed, and any comments about the arrest can all be obtained by the prosecution. Set accounts to private. Stop posting.
Failing to take the case seriously is another mistake. 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, including the inability to expunge the offense, the insurance surcharges, the interlock requirement, and the use of the conviction to enhance penalties in any future case.
Pleading guilty at the first appearance to “get it over with” is the most expensive mistake. The court will not negotiate a plea bargain in a DWI case. Pleading guilty produces the full statutory consequences with no opportunity to challenge the evidence. Even cases that seem unwinnable often have defects that surface during careful review of the discovery.
Again, be safe and responsible this New Year’s Eve and start off 2015 on the right foot. Happy New Year, everyone!