Shapiro & Sternlieb:
The Legal Maze Of DWI / DUI
by David H. Sternlieb, Esquire
This month, in our continued effort to inform the public about
the legal system, we will explore some of the consequences of being
arrested for driving a motor vehicle while under the influence of
alcohol, commonly known as DWI/DUI. It is important to keep in mind
that this article is intended for informational purposes only, and,
that no article can ever serve as a substitute for the advice of
an experienced attorney familiar with all of the facts and circumstances
of a particular client and his or her case.
Let’s face it – driving a motor vehicle while under
the influence of intoxicating liquor is a dangerous, and, too often,
deadly combination. It is also illegal. In fact, because drinking
and driving is such a dangerous thing to do, New Jersey law treats
it as the most serious of all non-criminal motor vehicle offenses.
Many people do not realize that in addition to intoxicating liquor,
it is also illegal to drive while under the influence of a hallucinogenic,
narcotic, or habit producing drugs. Therefore, if you take a prescription
medication, such as a narcotic pain killer, that contains a warning
about its affects on your ability to drive, you should take it very
seriously and think twice about driving while under it’s influence.
A typical DWI/DUI fact pattern reads as follows: a motorist decides
that he’s o.k. to drive home from a bar, restaurant, visiting
friends or relatives, or from a party after consuming a number of
drinks of liquor over several hours. To be extra careful, the motorist
drives extra slow, but doesn’t realize he is failing to stay
in his lane and is steering somewhat erratically and maybe hitting
the brakes a few too many times. A police officer on patrol observes
this erratic driving, and, based on his special training and experience,
decides to pull the motorist over. Upon approaching the driver’s
window and asking for the driver’s license, insurance card
and registration, the officer smells the odor of liquor coming from
inside the car or on the driver’s breath.
Now, the situation
escalates and the officer asks the driver if he’s had any
liquor to drink which the driver admits; the officer then asks
the driver to step out of the car to perform a series of physical
tests such as walking heel-to-toe on a straight line, some manual
dexterity and coordination tests, to recite a portion of the alphabet,
and, even examines the driver’s eyes for signs of intoxication
which the officer has been specially trained to recognize. Based
on the driver’s erratic driving, poor performance on the
roadside tests, and admission to having consumed liquor before
driving, the officer places the driver under arrest for DWI/DUI,
handcuffs him, places him in the patrol car, calls a tow truck
to tow his car, and brings the driver to the police headquarters
for further processing and to administer the Breathalyzer test.
If the driver refuses to provide breath samples for the Breathalyzer
machine, he will be charged with a separate serious offense for
his refusal to submit samples of his breath. If he does submit
breath samples which are analyzed by the machine to show an alcohol
concentration in the driver’s
blood of .08% or higher, the test results may be used as
evidence to establish the driver’s intoxication while driving.
If the police wish, instead of using the Breathalyzer machine,
the driver may be brought to a hospital for a blood test to measure
his blood-alcohol content.
Being arrested for and convicted of DWI/DUI in New Jersey presents
very serious consequences in terms of one’s freedom, financial
hardship, and driving privileges, among other things. A first time
offender who is convicted of DWI/DUI with a blood alcohol content
of at least .08%, but less than .10% faces a fine of
$250-$400, court costs, 12 to 48 hours of mandatory attendance for
evaluation, counseling and education at a IDRC or intoxicated driver
resource center, in the judge’s discretion, up to 30 days in
the county jail, a 3 month suspension of driver’s license,
mandatory additional fines and surcharges totaling $325, participation
in a program of community service or in a supervised visitation program
as a special condition of probation, may order the installation of
an interlock device on the driver’s ignition to prevent it
from working for a period of from 6 months to 1 year, and, finally,
the driver must satisfy all attendance, counseling and referral requirements
of the IDRC or he/she will face a mandatory jail term of 2 days and
continued driver’s license suspension until all of the IDRC
requirements are completed.
A first time offender with a blood alcohol content of .10% or
higher faces a fine of $300 to $500, court costs, 12 to 48 hours
of IDRC attendance, a jail term, if the judge wishes, of up to 30
days, driver’s license suspension from at least 7 months to
1 year, additional fines and surcharges totaling $325, participation
in a program of community service or in a supervised visitation program
as a special condition of probation, may order the interlock device
on the driver’s ignition for 6 months to 1 year, and, as stated
above, satisfaction of all of the IDRC’s requirements and referrals
or face jail time and continued license suspension until the IDRC
is satisfied.
Because DWI/DUI is such a problem in New Jersey , it is an offense
that is punished progressively harsher with each subsequent conviction,
and, for certain aggravating factors like DWI/DUI while on school
property. For example, if someone is convicted of a third DWI/DUI,
he/she faces a $1,000 fine, not less than 180 days in the county
jail, unless the judge orders that 90 of the sentence may be served
in an inpatient rehabilitation program approved by the IDRC, driver’s
license suspension for 10 years, various additional surcharges and
fines totaling $325, supervised probation or community service, mandatory
installation of an interlock device for from 1 to 3 year or revocation
of all vehicle registration certificates and license plates for 10
years, and, of course, full compliance with the IDRC’s requirements
and recommendations or face additional jail and license suspension.
Did you know that a first time DWI/DUI offender driving on school
property faces enhanced fines, jail time up to 60 days, and license
suspension from 1 to 2 years, among other penalties? Did you know
that when you are granted a New Jersey driver’s license, the
law says that you automatically and impliedly consent to providing
samples of your breath for Breathalyzer analysis upon request of
a police officer? Did you know that if you refuse such a request,
whether you are in fact intoxicated or not, you may be convicted
of the offense of Refusal to Submit to a Chemical Test, face up to
$500 in fines, license suspension of from 7 months to 1 year, other
fines, surcharges and penalties, including the IDRC?
Did you know that if you operate a commercial vehicle while your
blood alcohol content is .04% or higher, you may face suspension
of your CDL (commercial driver’s license), and additional significant
fines, penalties, and surcharges? Did you know that if convicted
of DWI/DUI, in addition to all of the Court ordered fines and penalties,
the State will require you to pay thousands of dollars in mandatory
surcharges for years? Did you know that if you are under the age
of 21 and drive with any alcohol in your system, regardless of how
low the blood alcohol content, you may face conviction of a section
of the DWI/DUI laws pertaining to underage drinking and driving and
receive license suspension, fines, and other penalties? Did you know
that you could go to jail for driving on the suspended list when
your suspension is for DWI/DUI?
The above information and fact pattern are just a small sample
of the important aspects of DWI/DUI in New Jersey . There are simply
too many serious ramifications to DWI/DUI to include in one newspaper
article. It is sufficient to conclude that DWI/DUI is a very serious
and complex matter that requires the assistance of an experienced
lawyer to analyze the case, determine if the arrest was appropriate
and whether there are any defenses available to the accused. An experienced
defense attorney will review the police reports, also called “discovery,” to
see if there was a legitimate reason for the police to pull over
the driver, to see if the Breathalyser machine was in proper working
order, whether the maintenance history of the machine may be relevant
to the defense of the accused, whether the officer operating the
Breathalyzer was properly certified to operate the machine, whether
all required procedures were followed in the stop, testing, arrest,
and processing of the accused.
The overall impact of a DWI/DUI conviction goes well beyond the
courtroom. The loss of driving privileges, mandatory IDRC attendance,
community service, and serving jail time quite often translates into
an impediment to working and earning a living in order to support
one’s self and family. The effects of the fines, surcharges,
and other penalties have an adverse economic impact on those convicted
of DWI/DUI and their families for years to come. Lastly, some people
convicted of DWI/DUI with suspended licenses choose to drive anyway
because they believe they won’t get caught or because they
think they have no choice in order to support their families. Such
a decision to drive while suspended is very unwise since it too often
leads to a vicious and expensive cycle of being arrested for driving
while suspended, years of additional license suspension, thousands
of dollars in fines, penalties and surcharges, and long jail sentences
in the county jail which get progressively longer with each subsequent
offense of driving while suspended.
So, what’s the best advice you can get from one newspaper
article regarding DWI/DUI? That’s an easy one: DON’T
DRINK AND DRIVE. What’s the next best advice? If you have been
dragged into the serious and complex legal maze because you were
arrested for DWI/DUI, you should consult with an attorney with the
skill and experience to handle such a case who will vigorously defend
your rights and provide you with appropriate information about your
options.