NJ DWI Facts :: New Jersey DUI Laws, FAQ, and Penalties

New Jersey DWI : NJ DWI Facts

1. Does a prior "Refusal" conviction for refusing to submit to an Alcotest or Breathalyzer breath test [N.J.S.A. 39:4-50.2; N.J.S.A. 39:4-50.4a] count as a prior conviction for NJ DWI [N.J.S.A. 39:4-50a]?

No. However, this may change very soon. The present case law under State v. Ciancaglini, holds that a prior "Refusal" conviction under N.J.S.A. 39:4-50.4a does not enhance a subsequent conviction for NJ DWI [N.J.S.A. 39:4-50a]. Please note that the New Jersey Senate has recently passed a bill that allows for a prior NJ Refusal conviction to enhance a sentence for a subsequent DWI conviction. This bill also allows for the same jail terms in both New Jersey DUI and Refusal convictions as well. The New Jersey Assembly has not voted on this bill at present.

2. Does a ten year gap between DWI convictions benefit a repeat NJ DWI defendant for all future offenses?

No. Under State v. Burroughs, if a second NJ DWI offense takes place at least 10 years after the person's first offense, they should be treated as a first offender for sentencing purposes only for the second offense. However, where at least 10 years has passed between a NJ DWI defendant's first and second offenses, but less than 10 years passed between their second and third offenses, the third offense must be treated as a third offense for sentencing purposes. Therefore, the "ten year step down" provision can be utilized once for every 10 year gap between NJ DWI offenses.

3. Does the Alcotest breath test operator have to observe a NJ DWI defendant for 20 minutes prior to administering such breath test?

Yes and No. The prosecutor must prove that any competent witness must observe a NJ DWI defendant for a minimum of 20 minutes prior to the administration of the Alcotest breath test. The recent case of State v. Ugrovics broadened the State's ability to prove at trial that a NJ DWI defendant did not ingest, regurgitate, or place anything in their mouth that could compromise their Alcotest breath test results. The State may produce at trial any competent witness who can testify that they continuously observed the NJ DWI defendant for a minimum of twenty minutes prior to the administration of the Alcotest breath test.

4. Can a third offense NJ DWI defendant avoid a jail sentence through house arrest, ankle bracelet or weekends in jail?

No. Under State v. Luthe, third offender sentence treatment for NJ DWI defendants requires a 180 days, straight time jail sentence to begin on the day of sentencing. The only permitted offset to such sentence is a 90 days in-patient stay in an IDRC-approved rehabilitation facility. Such rehabilitation stay is typically court ordered to begin after the completion of 90 days in jail. Such NJ DWI defendant would be transported directly from jail to the subject IDRC-approved rehabilitation facility to complete their 180 days jail sentence.

5. Does a NJ DWI or NJ Refusal defendant need to install an Interlock ignition device in their car after a conviction for N.J.S.A. 39:4-50a or N.J.S.A. 39:4-50.4a?

Yes. If a NJ DWI defendant's admitted blood alcohol concentration ["BAC"] was .15% or higher, that defendant will be required to install an Interlock ignition device in their car for 6 months - 1 year at sentencing for a conviction for N.J.S.A. 39:4-50a. A NJ Refusal defendant will also be required to install the Ignition interlock device following a conviction for N.J.S.A. 39:4-50.4a. The Ignition interlock device must be purchased or leased by the NJ DWI and NJ Refusal defendant and requires an offender to blow into the device to start their car before operation. The driver cannot start their car for 1 hour if their BAC is .05% or higher.

6. Am I entitled to a speedy trial for my NJ DWI or NJ Refusal offense?

Yes. Pursuant to State v. Tsetsekas, the court dismissed a NJ DWI matter based on the State's failure to prosecute the defendant's matter after the passage of 360 days. The defendant in that matter was ready in court to proceed to trial on many prior occasions.

7. Does the fact that a defendant does not speak or read the English language act as a defense for a NJ DWI or NJ Refusal offense?

Yes. State v. Marquez recently held that NJ law enforcement must use a non-English speaking defendant's native language to explain the contents of the NJ DWI implied consent form to the breath test warnings set forth in what's commonly known as "Paragraph 36".

8. Can the court sentence a defendant to the New Jersey Sheriff's Labor Assistance Program ["SLAP"] instead of jail for violating N.J.S.A. 39:3-40, Driving While Suspended due to a prior NJ DWI?

No. State v. White decided that defendant's who face an enhanced sentence for violating N.J.S.A. 39:3-40, Driving While Suspended due to a prior NJ DWI must serve a jail term of 10 - 90 days for such offense. Alternatives to incarceration are not available to such defendants.