In addition to the upcoming Memorial Day Weekend, the Garden State officially ends its mandatory mask requirement tomorrow (Friday, May 28th), There is no doubt this will encourage people to head into New Jersey this holiday weekend. Philadelphia has yet to lift the requirement and don’t be surprised if Pennsylvania residents start crossing the bridge for nights out in South Jersey as opposed to Center City simply because of this mask issue. New Jersey bars and restaurants will likely host alcohol and drink specials and encourage patrons to visit establishment in addition to the other New Jersey incentives such as free parking, less expensive gas and general overall safety.

Who is considered drunk or intoxicated in New Jersey?

In New Jersey, a person is guilty of drunk driving (39:4-50) if he/she operates a motor vehicle with a blood alcohol concentration (BAC) of .08% or greater. BAC refers to the amount of alcohol in your blood. While the state has set the minimum intoxication level at .08%, readers should know that New Jersey can still convict of drunk driving if the prosecution can establish your consumption of alcohol negatively impacted your ability to operate a motor vehicle safely within a state. This article, however, focuses on a BAC of .08% or higher along with any DUI offense derived from the ingestion or consumption of narcotic, hallucinogenic, or habit producing drug.

What are the penalties for drunk driving in New Jersey?

New Jersey law specifies that upon conviction for a DUI where the BAC is .08% or higher, but less than .10%, the offender is subject to a fine of $250.00 – $400.00, a maximum of 30 days in prison, a minimum 3 month license suspension, a minimum of 12 hours at an intoxicated driver resource center, and an automobile insurance surcharge of $1,000.00 for 3 years. (See P.L. 2003, chapter 314).

What about a second DWI offense?

If an individual is convicted of DWI with a BAC of .10% or higher, or the prosecution can establish that the person was under the influence of an illegal drug the person is subject to a fine of $300.00 – $500.00, a maximum of up to 30 days in jail, a minimum license suspension of 7 months, a minimum of 12 hours at an intoxicated drivers resource center, and an automobile insurance surcharge of $1,000.00. In cases where a BAC is .15% or higher, a person is subject to all of those penalties in addition to an ignition interlock device for a period of 6 months – 1 year after license restoration.

New Jersey has little sympathy for repeat offenders such an individual, regardless of his/her BAC level, faces a fine of $500.00 – $1,000.00, a minimum of 48 hours to up to 90 days in jail, a 2 year license suspension, 48 hours of consecutive detainment at a regional intoxicated driver resource center, an automobile insurance surcharge of $1,000.00 a year for 3 years, and an ignition interlock device for a period of 1 – 3 years after license restoration. In the event of a third DUI the fine increases to $1,000.00, there is a mandatory minimum of 180 days in jail, a 10 year license suspension, an inpatient alcoholism treatment program along with the other penalties for the previous offense.

If these penalties were not harsh enough, all DUI offenses in New Jersey regardless of BAC level require that the offender pay a $100.00 fine to the Drunk Driving Enforcement Fund, a $100.00 fee to the Motor Vehicle Commission, a $100.00 fee to the Intoxicated Driver Program, a $50.00 fee to the Violent Crime Compensation Fund Fee, and $75.00 fee to the Safe and Secure Community Program Fund. A total of $425.00 is penalties in addition to those just stated.

Does New Jersey have DWI diversion programs like Pennsylvania’s ARD program?

There is obviously no doubt that New Jersey’s DUI law carries with it harsh consequences and if you are faced with this offense you consider all of your options prior to entering into any type of plea agreement with the State. Unlike Pennsylvania, New Jersey maintains no diversion program for DUI offenses and a plea agreement will not provide you with any better result than the mandatory minimum penalties stated above.

It is important that you review the discovery with your attorney to ensure that the State’s version of what occurred on the night/day in question is complete and accurate. Discovery is a copy of all the evidence that the State, through the prosecution, may attempt to introduce at trial. A proper review of discovery should include the consideration of possible pretrial motions such as a Motion to Suppress the evidence against you due to a violation of your rights under the 4th and 14th Amendment to the United States Constitution and article 1, paragraph 7 of the New Jersey Constitution. Pretrial motions are often the best weapon for a defense counsel in these cases and your attorney should focus his initial investigation on these Constitutional issues. If your case does proceed to trial, your defense counsel should focus on the following issues: actual physical control of the motor vehicle; field sobriety test administration; the administration of Alcotest, and results of the Alcotest to determine BAC.

Field Sobriety Testing – Why it matters?

The National Highway Traffic Safety Administration (NHTSA) developed the standardized field sobriety tests to assist law enforcement officers in determining whether an individual is under the influence of drugs or alcohol. This procedure consists of three tests: the Horizontal Gaze Nystagmuse (HGN); the Walk and Turn Test (WAT); and the One Leg Stand Test (OLS). It is important that your attorney be familiar with the procedure pertaining to the administration of these tests as well as what constitutes a pass or failure. While field sobriety tests may provide evidence of intoxication, the results of the Alcotest will more than likely be the prosecution’s strongest piece of evidence.

The Alcotest takes a sample of an individual’s breath and converts it to a blood alcohol concentration reading. The New Jersey Supreme Court decision in State v. Chun, 194 N.J.54 (2008) set forth what documents the prosecution needed to provide to the defense and present at trial to ensure the admissibility of the Alcotest results. The Chun decision requires that the prosecution produce 12 separate documents pertaining to the calibration of the device, the accuracy of the solution within the device, and the credentials of the operator who performed the test. It is very important to keep in mind that without these documents this scientific evidence, which again is the prosecution’s strongest argument, is inadmissible. The exclusion of this scientific evidence alone could result in your acquittal or the dismissal of charges.

In closing, the penalties for DUI are severe. A conviction carries with it the stigma of a criminal conviction, a license suspension and substantial fines. It is very important that your attorney explore all pretrial and trial issues with you prior to entering into negotiations with the State. The failure to explore these issues is simply unacceptable and should cause you to question your decision to retain that professional.