Driving While Intoxicated

Driving While Intoxicated (DWI) is unlawful pursuant New Jersey Statute NJSA 39:4-50 et seq. Specifically, it is unlawful to operate a motor vehicle while under the influence of intoxicating liquor (and/or drugs). If a driver’s Blood Alcohol Content (“BAC”) is .08% or more, a per se violation of DWI may be found.

The consequences of a DWI conviction are severe. If convicted, the court will impose a fine, a period of license suspension and is required to make a referral to the Intoxicated Driver’s Resource Center (IDRC) for alcohol or drug related screening and counseling. Additionally, the court may impose the requirement that an alcohol detecting interlock device be installed in a vehicle. The court may also impose a period of incarceration.


The penalties for a DWI are specified within the DWI statute. They can be summarized as follows:

1st Offense with BAC of .08% but less than .10%

  • Fine of $250 to $400 plus mandatory assessments of $325
  • In the court’s discretion, Jail not exceeding 30 days
  • Mandatory driver’s license suspension of 3 months
  • 12 to 48 consecutive hours of IDRC and satisfy screening requirements
  • Possible interlock for 6 months to 1 year

1st Offense with BAC of .10% or higher

  • Fine of $300 to $500 plus mandatory assessment of $325
  • In the court’s discretion, Jail not exceeding 30 days
  • Mandatory driver’s license suspension of 7 months to 1 year
  • 12 to 48 consecutive hours of IDRC and satisfy screen requirements
  • If BAC is less than .15%, possible interlock for 6 months to 1 year
  • If BAC is .15% or greater, mandatory interlock for 6 months to 1 year

2nd Offense:

  • Fine of $500 to $1,000 plus mandatory assessment of $325
  • Jail for not less to 2 days to 90 days, but may serve 2 days consecutively in IDRC
  • Mandatory driver’s license suspension for 2 years
  • Shall satisfy IDRC screening requirements
  • Mandatory interlock for 1 year to 3 years

3rd or Subsequent Offense:

  • Fine of $1,000 plus mandatory assessment of $325
  • Jail for not less to 180 days, but may serve 90 days in an in-patient rehabilitation program
  • Mandatory driver’s license suspension for 10 years
  • Shall satisfy IDRC screening requirements
  • Mandatory interlock for 1 year to 3 years

A DWI offense in a school zone pursuant to NJSA 39:4-50(g) serves to enhance the penalties DWI offense. A conviction for a school zone DWI offense essentially doubles the amount of fines and period of license suspension that the court may impose.

In addition to a DWI, a refusal to submit to a chemical breath test may result in an additional charge. Fines and penalties for a refusal to submit to a chemical breath test pursuant to NJSA 39:4-50.4 are likewise severe:

1st Offense

  • Fine of $300 to $500 plus mandatory assessments of $100 DDEF
  • Mandatory driver’s license suspension of 7 months
  • Mandatory IDRC screening requirements
  • Mandatory interlock for 6 months to 1 year

2nd Offense

  • Fine of $500 to $1,000 plus mandatory assessments of $100 DDEF
  • Mandatory driver’s license suspension of 2 years
  • Mandatory IDRC screening requirements
  • Mandatory interlock for 1 to 3 years

3rd or Subsequent Offense

  • Fine of $1,000 plus mandatory assessments of $100 DDEF
  • Mandatory driver’s license suspension of 10 years
  • Mandatory IDRC screening requirements
  • Mandatory interlock for 6 months to 1 year

For DWI and DWI Refusal cases, there are Supreme Court guidelines, court rules and prosecutorial guidelines that specifically prohibit plea bargaining in these types of cases. For example, if a person is charged with a first offense DWI and first offense DWI Refusal, the court is not allowed to accept a dismissal of the DWI charge in exchange for a guilty plea on the DWI Refusal, and vice a versa. Additionally, the DWI charge cannot be plea bargained down to another driving offense, for example, reckless driving.

Notwithstanding the severity of the charge and the restrictions on plea bargaining, many people falsely assume that being arrested for DWI will eventually result in a conviction. That is not always the case. In fact, recent data suggests that the charge to conviction rate is roughly about seventy percent (70%). This means that approximately thirty percent (30%) of all DWI charges are amended, dismissed or successfully defended.   It is important to remember that it is the State that has the burden to prove the charge against the driver. It is never the defendant’s burden to prove his or her innocence.   The burden of proof for the State is high – “beyond a reasonable doubt” standard. As such, there have been many instances where successful fact sensitive defenses have been upheld against DWI charges.

Generally, in order for the State to prevail on the DWI charge, the State must prove that (a) there was at least an articulable and reasonable suspicion to stop the driver for a violation of law, (b) that there was probable cause to arrest the driver for DWI, and (c) that the driver was intoxicated while operating the motor vehicle.

A challenge to the stop, arrest, and level of intoxication or impairment may be made at the time of trial or even prior to trial by way of a probable cause or suppression motions.

Challenging the Stop

A stop must be supported by an articulable and reasonable suspicion of a violation law. Delaware v. Prouse, 440 U.S. 648 (1979); State v. Carpentieri, 82 N.J. 546 (1980); State v. Kirk, 202 N.J. Super 28 (App. Div. 1985). This means that an officer cannot arbitrarily or randomly stop any motor vehicle and arrest the driver for DWI. Instead, the police officer may only be justified in stopping a motor vehicle if he observes a traffic infraction or other violation of law. In many cases involving DWI arrests, the officer may report seeing the vehicle being operated in an erratic manner. A careful factual cross-examination of the officer, along with other supporting evidence, for example, video evidence, may provide a successful challenge to the reasonability of that officer’s observation and suspicion for the stop. If the stop is deemed unreasonable, invalid and contrary to law, then the arrest may also be held unlawful and the DWI charge may be dismissed.

Challenging the Arrest

If, however, the stop of the motor vehicle is deemed by the court as being proper, the next challenge will be the sufficiency of the arrest on probable cause grounds. Although an officer may have reasonably and properly stopped a motor vehicle, he cannot arrest the driver for DWI unless that arrest is support by probable cause. In order to find probable cause to arrest a motorist for DWI, the officer must have a well-grounded, reasonable suspicion that, due to the consumption of alcohol, the individual is “so affected in judgment or control as to make it improper for him to drive on the highways.” State v. Johnson, 42 N.J. 146, 165 (1964). It is not necessary that the defendant be “absolutely ‘drunk’ in the sense of being sodden with alcohol.” Id. (quoting State v. Emery, 27 N.J. 348, 355 (1958)). Rather, the relevant inquiry is whether the “presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” Id.

The observations of the police officer and the standardized field sobriety test (“SFST”) are often used to support the officer’s probable cause for a DWI arrest. In addition to the officer’s observation of erratic driving, the officer may report his observations from his first interaction with the driver. These observations may include:

  • An odor of alcoholic beverage emanating from the defendant’s breath
  • Slurred, slow, rambling, or boisterous speech
  • Flushed face, bloodshot eyes, glassy eyes or watery eyes
  • Inability to stand without support
  • Disheveled clothing
  • Fumbling and slow hands
  • Swaying, staggering or sagging

These observations have been held by the courts as indicia of intoxication. But in addition to the above, the officer will likely utilize the SFST to aid his probable cause determination. The SFST is a series of standardized psychophysical and coordination tests that were developed by the National Highway Traffic Safety Administration to determine driving while impaired detection guidelines. The SFST was created to show indications of intoxication and impairment above .10% BAC. But the reliability of the SFST has been challenged.

There are basically three (3) standardized tests utilized in NJ, along with what many refer to as a pretest.

Pretest – reciting of the alphabet or counting. This test is not a recognized test under the SFST standards but has been utilized by police officers since it is familiar and convenient. It is convenient because it does not necessarily require that the driver exist the motor vehicle. The reliability of this test as an indicator of intoxication has, however, been severely challenged. Depending on a person’s level of education, English competency, preexisting speech pattern difficulties, and other external factors, a person’s inability to satisfactorily complete the test may be subject to a successful challenge.

SFST Test 1 – Horizontal Gaze Nystagmus (“HGN”). Nystagmus is the rapid involuntary movement of the eyes despite being fixed on a particular object. Officers should be properly trained in the administration of this test. Prior to starting the test, the officer is required to check for three conditions, (a) whether the pupils are the same size, (b) whether the pupils track equally, and (c) if there is resting nystagmus. An officer may report to have observed that there was lack of smooth pursuit in both eyes, that there were distinct and sustained nystagmus and onset of nystagmus prior to 45 degrees in both eyes, and that there was no observation of any vertical nystagmus.

Factors such as neurological illness and head trauma may affect the reliability of the HGN test. Additionally, the testing conditions, typically at night with oncoming headlights of cars passing, may also negatively affect the integrity of the HGN test. Other challenges may be directed toward the officer’s training and inability to properly administer the test. The officer is required to obtain at least 20 successful practice tests prior to being certified by the NJ State Police in the HGN test.

SFST Test 2 – Walk and Turn Test (“WAT”). In the WAT, the driver will be placed in a starting position and instructed to take 9 steps forward, turn, and then take 9 steps back to the starting position. The officer may report that prior to beginning the test, the driver stepped out from the starting position or was unable to follow the instructions. The officer may also likely report that the driver did not complete 9 steps in either direction and that the driver became unbalanced during the walk or during the turn. The driver may also have missed maintaining his steps “heel to toe.”

Physical impairments, injuries, disorientation or particular sensitivity due to the police vehicle’s overhead lights and other external factors may also affect the reliability of this test. The type of footwear (eg. high heels, sandals and the like) may also affect the reliability of this test. How the test is administered by the police officer is a crucial element. The test is required to be explained and demonstrated to the driver.

SFST Test 3 – One Leg Stand (“OLS”). In the OLS test, the driver will be instructed to lift one leg approximately six inches off the ground, for thirty seconds, and with the driver counting “one-one thousand, two-one thousand, three-one thousand . . . .” etc.    The officer may report that the driver touched his feet to the ground prior to the required thirty second period. The officer may also report to having seen the driver raise his arms or waive his hands to try to maintain balance.

Again, because this is a psychophysical coordination test, physical impairments or injuries may affect the validity of this test. The proper administration of the test is also crucial. The test should be performed on a flat and well lighted surface.

Other factors that should be taken into account in challenging the SFST administration is the age and weight of the driver, along with any neurological or physical impairments or injuries.

Additional factors to consider in challenging the validity of the SFST are (a) whether the tests were administered in the prescribed standards, (b) whether the standardized indicators or clues were used to evaluate the driver’s performance, and (c) whether the standardized criteria were used to interpret the performance.

Challenging the Level of Intoxication and Impairment

If the observations of the officer and the SFST are determined by the court as not being sufficient for probable cause to arrest the driver for DWI, then the arrest will be deemed unlawful and the matter may be dismissed. However, if the court finds that there was probable cause for the arrest, then the next burden for the State will be to prove the driver’s level of alcohol intoxication or impairment.

In New Jersey, the State utilizes a chemical breath testing machine called the Drager Alcotest 7110 MKIII-C. It has been jokingly said by many that a DWI defendant’s life hangs on the balance of a machine that has the outdated computing capacity of a 1980s video game. The Alcotest has been challenged all the way to the Supreme Court of New Jersey. Nonetheless, it was determined in the Court’s opinion in State v. Chun, 194 N.J. 54 (2008) that the Alcotest machine was scientifically reliable.

The Alcotest is essentially an old computer that is comprised of two testing chambers. If a breath sample is provided, the sample will be analyzed in one chamber through the means of a chemical reaction from an electrochemical cell. This is referred to as the EC reading. The same sample will also be analyzed in a separate chamber by means of an infrared spectroscopy. This is referred to as the IR reading.

There is limited officer/operator input and manipulation of the Alcotest machine. Once cycled on, the operator of the machine will input the relevant driver’s personal information onto the machine. The machine is then purged with the ambient air which should present a reading of 0.0% BAC. A control test is then conducted utilizing a simulator solution of .10% BAC that is heated to simulate a person’s breath sample. The registered reading should be .10% BAC for this first control test. The driver will then be asked to provide two separate breath samples into the machine.   The volume and duration of the breath samples are recorded. If the breath samples are sufficient, the machine will register an EC and IR reading for each of the two breath samples. After the completion of the driver’s breath testing, a final control test is conducted with the .10% simulator solution. This second control test should register a .10% BAC reading. These two control tests serve to verify that the Alcotest machine was functioning properly before and after the driver’s two breath tests. Lastly, an ambient air purge of the machine is conducted. At the completion of the test, the Alcotest will determine a final measurement of the driver’s BAC.

The four readings from the driver’s two breath samples are measured against each other for certain mathematical tolerances. This tolerance will determine whether or not the final reading generated by the machine is a “true” and reliable reading.   This system is designed to provide a high level of accuracy and integrity for the final breath test reading.

Challenges to the Alcotest readings have included the following:

(a) Continuous 20 minute observation prior to the breath test. An officer is required to observe the driver continuously for 20 minutes immediately prior to the administration of the Alcotest to assure that breath samples are free of any remaining mouth alcohol that may result from foreign substances in the mouth, burping, vomiting, etc. Although the 20 minute observation requirement exists, an officer may not have accurately reflected in his report the period of observation or may have even missed the observation requirement entirely.

(b) Changing of the mouth piece. To protect the integrity of the separate breath samples by the driver, the mouth piece of the Alcotest is required to be changed prior to each breath sample. This too may be missed by the officer in his reports.

(c) Radio and cell phone transmissions. The Alcotest room is to be cleared of all radio and cell phones during the breath testing. The existence of electronic transmissions has been used to challenge the integrity of Alcotest reading.

(d) Challenge to Discovery. The State is required to provide a number of documents in the course of its discovery obligations as per State v. Chun. The document requirements of the State include what are known as “foundational documents” and “core foundational documents.” These documents consist of the following:

  1. The Alcotest Influence Report (AIR)
  2. The latest New Standard Solution Report prior to the breath test
  3. Alcotest Credentials of the officer who administered the Alcotest
  4. Alcotest Credentials of the officer who conducted the solution change
  5. Most recent calibration records, including Part I – Control Test, Part II – Linearity Test, and the Solution Change Report following the calibration
  6. Alcotest / Coordinator credentials of the Coordinator that conducted the Calibration
  7. Certificates of Accuracy for:
      • The subject Alcotest machine by serial number
      • CU-34 heating element for the .10% Solution
      • CU-34 heating element for the .04% Solution
      • CU-34 heating element for the .08% Solution
      • CU-34 heating element for the .16% Solution
      • Temperature Probe on Solution Change report
      • Black Key Temp Probe on Calibration Record
  8. Certificates of Analysis for:
      • .10% Solution Sample reflected on AIR
      • .10% Solution Sample reflected on Sol Change Report
      • .10% Solution Sample reflected on Calibration Record
      • .04% Solution Sample reflected Part II Linearity Test
      • .08% Solution Sample reflected on Part II Linearity Test
      • .16% Solution Sample reflected on Part II Linearity Test
  9. Certificate of Calibration for the Digital Thermometer reflected on the Calibration Record.
  10. State Police Alcotest calculator worksheet.
  11. Repair Records of the Alcotest
  12. Other items/documents to be requested and provided include:
      • Arrest Reports, Investigative Reports, Supplemental Reports, Drinking and Driving Reports, Last Drink Reports, SFST Report
      • Attorney General’s Standard Statement for DWI Offenses
      • Miranda Waivers
      • Accident Reports
      • CAD/Blotter reports
      • SFST Credentials of relevant officers
      • HGN Credentials of relevant officers
      • School Zone ordinances or maps
      • Photographs / video or audio
      • Request to inspect Alcotest Room


If the above discovery is not provided then a motion for a discovery order (Holup order), a motion to suppress the Alcotest and/or a motion to dismiss may be made.

If the Alcotest is suppressed due to a successful discovery or other challenge, then the State will not be able introduce a reading as to the level of intoxication. It will, however, rely upon the observations of the officer and the SFST to attempt to prove its DWI case.

Expert Witness and Opinion

Analyzing and identifying defenses in a DWI case has become a very technical task. The use of an expert witness in many DWI cases is often recommended. An expert witness may be a former or retired police officer or State Trooper who, through his training and experience, has developed an expertise that is or will be recognized by the courts. An expert defense witness will be able to review the discovery and offer an opinion about:

  1. The proper police procedures for and during the stop;
  2. The proper administration, interpretation and integrity of the SFST and interpretations of the officer’s observations;
  3. The proper operation training and certificates of the relevant officers;
  4. The proper administration, calibration, functionality and operation of the Alcotest machine.

In addition to the above, the expert will be able to assist in the defense strategy of the case.

Charged with a DWI

If you are charged with a DWI, it is advisable that you seek legal counsel.   You have the right to represent yourself in a DWI case. However, due the very technical nature of DWI matters and a possible lack of legal knowledge as to procedures for discovery through trial, it will be difficult to position yourself for a successful defense.   If you cannot afford the services of a private attorney, then you may apply for the services of a public defender. DWI cases are matters involving consequences of magnitude for those who are so charged. The Court may provide you with a public defender if you qualify.

Once retained or appointed, the attorney will initially submit a letter of representation to the court and request that all the relevant discovery concerning the case be provided. He will then analyze the information, identify possible defenses, retain an expert if necessary, and then make the relevant pretrial motions or assert the defenses at the time of trial.

The above is for information purposes only and does not constitute legal advice. For more information or to consult with our attorneys, please feel free to contact The Choi Law Group, LLC.