An Expensive Consequence of the Office Holiday Party: The Cost of Drunk Driving in New Jersey (Part Two)

Part Two: Trying the Case

So, once your office party/Friendsgiving/New Year’s Bash has come and gone, what comes next?  Ideally, you did not drink and drive and are, at worst, nursing a nasty hangover and deciding how to explain certain embarrassing moments.  If, however, you made a mistake and got arrested for driving while intoxicated (DWI), you have a summons to municipal court and a real journey ahead.

Trying the Case in Municipal Court

A case in the Municipal Court occurs very similarly to a case in the criminal court.  Once you have arrived in the municipal court, you have a choice–you can either plead guilty to the charges, or go to trial.  If the case goes to trial, there is discovery, motions to suppress, and other pre-trial actions which can be time-consuming and expensive.  If you plead guilty, the penalty may be reduced, or certain charges dismissed, but there will still be substantial and serious penalties.  It is important to contact a lawyer to discuss these options and find out what would be best for your particular circumstances.  This is especially true if this is not your first offense.

If you decide to go to trial, you may be able to use pre-trial motions and discovery to strengthen your case or get the case dismissed altogether.  In certain cases, the breath test results may be suppressed, which means that they cannot be admitted, including where there is evidence that the test was not properly calibrated, or where there were no reasonable grounds to perform the test.  A motion to suppress may also be granted for a blood test. Likewise, at trial, a defendant has the right to cross-examine witnesses, including the police officer that made the arrest.  If the case against the defendant is not proven “beyond a reasonable doubt,” the defendant will be found not guilty. State v. Kuropchak, 113 A.3d 1174, 1182 (N.J. 2015), citing State v. Kashi, 360 N.J. Super. 538, 544 (App. Div. 2003).

Appeal: Taking it to the Law Division

What happens if you’re convicted in Municipal Court? You may appeal the municipal court’s conviction or sentence to the Law Division. Kuropchak, supra, citing N.J. Court Rule 7:13-1 and 3:23-1.  The Law Division handles the appeal “de novo,” meaning that the case is tried again, as if the municipal trial never occurred.  Kuropchak, supra, citing State v. Johnson, 42 N.J. 146 (N.J. 1964).  If you are arrested for a DUI or have been convicted of a DWI in municipal court, you should consult a lawyer to address any appeal rights and assist you with any and all procedural requirements.

Consequences and Penalties

If you are convicted of a DWI, the consequences can be serious.  For a first offense, the penalty depends on the defendant’s blood alcohol concentration (BAC).  If the defendant’s BAC is between 0.08% and 0.10%, the penalty is a fine between $250 and $400, between 12 and 48 hours in the Intoxicated Driver Resource Center, up to 30 days incarceration, and loss of driver’s license for three monthsN.J.S.A. 39:4-50(a)(1)(i).

If the defendant’s BAC is 0.10% or above, or the defendant is found to be intoxicated on other substances, the penalty is a fine between $300 and $500, between 12 and 48 hours in the Intoxicated Driver Resource Center, potential incarceration up to 30 days, and a loss of license for a period of seven months to a yearN.J.S.A. 39:4-50(a)(1)(ii).

In either case, the court may order the installation of an ignition interlock device. N.J.S.A. 39:4-50(a)(1)(iii), P.L. 1999, c.417 (C.39:4-50.16 et al).

Your Second (or Third, or Fourth…) Time Around

What happens if this is a second or third offense or other subsequent DWI offense?  If you have had a conviction for DWI before, even if it is in another jurisdiction, you may be a repeat offender. N.J.S.A. 39:4-50.   If you have a previous conviction for refusing to submit to a breathalyzer, you may not be sentenced as a second-offense for a DWI. State v. Frye, 90 A.3d 1281, 1290 (N.J. 2014) citing Ciancaglini 10 A.3d 870 (N.J. 2011).

The New Jersey Appellate Division has recently found that even if you were previously convicted of a violation of a different subsection of the statute, you may be considered a second-time offender.  State v. Wheatley, (2016).  In that case, the court rejected a defendant’s claim that his previous conviction under subsection (g), which concerns violations committed in school zones, did not lead to a second-offense sentence for his conviction under subsection (a).  Id.

For a second offense, the penalty can be a fine between $500 and $1000, 30 days community service, 48 hours to 90 days in jail, and a loss of license for two years.  After two years, the defendant will have to re-apply for a driver’s license.  An ignition interlock device is also required.  N.J.S.A. 39:4-50(a)(2).

For a third offense, and every offense afterward, the penalty can be a fine of $1,000, incarceration for up to 180 days, and a loss of license for ten years.  The period of incarceration may be reduced up to 90 days for time spent in rehabilitation.

In addition, all penalties are higher when the DWI occurs on school property, within 1,000 feet of school property, or through a school crossing.  N.J.S.A. 39:4-50(g).  Under those conditions, the penalty for the first offense is a fine of $500 to $800, up to sixty days in jail, and a license suspension for one to two years.  For a second offense, the penalty is a fine of $1,000 to $2,000, sixty days community service, imprisonment (or community service if the court finds that appropriate) for up to 180 days (with 4 consecutive days required), and four years license suspension.  The third violation has a penalty of a $2,000 fine, 180 days incarceration (with a possible 90 days deducted for time spent in an inpatient rehabilitation program), and a 20 year license suspension.  N.J.S.A. 39:4-50.


Trying a DWI case alone can be overwhelming.  If you or a family member have been charged with a DWI, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com

An Expensive Consequence of the Office Holiday Party: The Cost of Drunk Driving in New Jersey (Part One)

Part One: Before the Trial

The Holiday Season is upon us, which means that holiday celebrations involving alcohol are in full swing.  You may regret that last beer at that Friendsgiving, that extra cocktail at the office holiday party, or that third glass of champagne at the New Year’s Eve party if you are charged with a DUI or DWI this holiday season.

What Happens if You Are Pulled Over for Drunk Driving?

If you are suspected of drunk driving, either on the road, at the site of an accident, or at a checkpoint, you will likely be subjected to certain tests.  These are the field sobriety test and a breathalyzer test.  The field sobriety test often includes touching a finger to your nose, walking heel-to-toe, and standing on one foot.  However, the field sobriety test may not be undertaken if there are other signs of intoxication.

If you fail these tests or are found to have other significant signs of intoxication, you will likely be arrested, then asked to take a breath test.  In order to perform a breath test, the police officer must have reasonable grounds to believe that you have driven while intoxicated.  N.J.S.A. 39:4-50(a).  According to New Jersey statute, “[a]ny person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath…to determine the content of alcohol in his blood.”  Id.  While the test cannot be performed by force, there are penalties for refusing to take a breath test.  N.J.S.A. 39:4-50(e) and 39:4-50.4(a).

The penalties for refusal to take a breath test are: for a first offense, revocation of license for seven months to a year plus $300 to $500 in fines; for a second offense revocation of a license for two years plus $500 to $1,000 in fines; and for a third offense, license revocation for ten years plus $1,000 in fines and a required ignition interlock device.  In any revocation of license under this statute, the defendant will be referred to an Intoxicated Driver Resource Center. N.J.S.A. 39:4-50.4(a). The penalties are significantly increased if the defendant was driving on school property, within 1,000 feet of school property, or through a school crossing. N.J.S.A. 39:4-50(b).

If you refuse to take the breath test and are charged accordingly, you may wish to try the case in municipal court. In municipal court, the prosecutor must prove

by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving…on the public highways or quasi-public areas of this State while under the influence [of alcohol or drugs]…; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.

N.J.S.A. 39:4-50(a).

Blood Test

 Under certain circumstances, you may be asked to submit to a blood test.  This will likely be some time after your arrest, given that a warrant for your blood should be acquired.  Unlike a breath test, a blood test requires a warrant or “exigent circumstances.”  This was recently confirmed by the United States Supreme Court in Birchfield v. North Dakota, slip. Op. at 34.  The Supreme Court has generally held that drawing blood constitutes a higher possibility of creating privacy issues.  Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013).  The Court in McNeely ruled that the possibility that the alcohol will dissipate in the bloodstream may create exigent circumstances that would allow the drawing of blood, but that exigent circumstances are not created as a rule.  Id. at 1563.  Such exigent circumstances must be established on a case-by-case basis.  If blood is taken without a warrant or exigent circumstances, any test results will likely not be admissible in municipal or criminal court.

What is the Charge?

If you do get pulled over and charged for drunk driving, you will be specifically charged with Driving While Intoxicated (DWI).  By statute, a DWI is defined as having occurred when someone “operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood[.]”  N.J.S.A. 39:4-50(a).  According to the Division of Highway Traffic Safety, if you are driving in a way that shows impairment, you can be charged with a DWI no matter what your BAC.  (See www.nj.gov/oag/hts/downloads/dui-bro-eng.pdf.)

The number of drinks to get to a 0.08 blood alcohol concentration (BAC) depends on a person’s gender and weight, but can be 2 to 4 drinks in the average healthy woman and 2 to 5 in the average healthy man.  Each drink can be 1.5 ounces of 80 proof liquor, 12 ounces of beer, or 5 ounces of wine.  Generally, a person eliminates one drink’s worth of alcohol per hour.  (These numbers are according to a chart adapted by Lehigh University from the Pennsylvania Liquor Control Board BAC Tables.  Find at http://studentaffairs.lehigh.edu/content/bac-and-binge-drinking.)

Of course, the easiest way to avoid getting arrested for a DWI is not to drive drunk in the first place.  Don’t drink and drive, and we’ll all make it to 2017 alive, and without a summons to municipal court.

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Getting pulled over on suspicion of drunk driving can be terrifying for any driver.  If you or a family member has been arrested for driving under the influence, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com.

*This post is part one of a two part series on Drunk Driving. Come back next week for part two of this series, “Trying the Case”.