NJ
Drunk Driving Arrest, Free Case Evaluation
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THE
STATE OF NEW JERSEY
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JOHN MENZEL, J.D.
and
the Law Firm of John Menzel
NEW JERSEY DWI INFORMATION
Once, the terms "drunk driving," "driving while intoxicated," "driving while impaired," "DWI," "driving under the influence," and "DUI," were terms with significant legal distinctions with significantly different legal consequences. But today in New Jersey, these terms have come to mean the same thing: a violation of New Jersey Statute 39:4-50. If you or someone you know faces a charge under N.J.S. 39:4-50 (or under N.J.S. 39:4-50.2 or N.J.S. 39:4-50.4a for breath test refusal), here is some information to help understand what happens, what's at stake, and what to do when faced with a motor vehicle stop or arrest for drunk driving in New Jersey.
This website is offered as a public service to help explain the laws in New Jersey and was prepared by John Menzel, J.D., a premiere drunk driving defense attorney serving clients in courts throughout the entire State of New Jersey. John Menzel, J.D. defends people charged with drunk driving and related offenses in New Jersey. John Menzel, J.D., has concentrated his practice in drunk driving defense since 1988.
John Menzel, J.D., has defended people in thousands of drunk driving cases in hundreds of municipal courts throughout New Jersey and criminal cases in Superior Court. He has argued appeals up to the New Jersey Supreme Court, and appeared in the Federal District Court and Third Circuit Court of Appeals on habeas corpus petitions filed for people charged with drunk driving in New Jersey. A member of several bar associations devoted to criminal and DUI defense, he also teaches law at Ocean County College.
To learn more about New Jersey's DWI laws, click on any of the following topics:
q When and How to Plead
q What the State Must Prove to Convict You
q What the State Must Prove to Show a Breath Test Reliability
q Documents Drunk Driving Defendants Should See Before Deciding What to Do
q Documents Breath Test Refusal Defendants Should See Before Deciding What to Do
q Additional Trial Preparation: When to Hire an Expert
q Drunk Driving: First Offense Penalties
q Drunk Driving: Second Offense Penalties
q Drunk Driving: Third Offense Penalties
q Breath Test Refusal: First Offense Penalties
q Breath Test Refusal: Second Offense Penalties
q Breath Test Refusal: Third Offense Penalties
q Underage Operation With a BAC in Excess of 0.01 %
q Your Constitutional Rights
q Your Statutory Obligations
q Do's and Don'ts When Stopped for Drunk Driving
q Do's and Don'ts When Arrested for Drunk Driving
q If You Are Charged with an Offense
q The Steps of Drunk Driving Litigation
NEW JERSEY LICENSE SUSPENSION LAWS
NEW JERSEY DWI STATUTES
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LAW OFFICES OF JOHN MENZEL, J.D.
The Process Begins when a police officer makes a motor vehicle stop or investigates an accident or assists a motorist. This first contact with police may mature to an arrest if the officer suspects that you, the motorist, are either under the influence of some substance or have a blood alcohol content in excess of the legal limit. This limit is now .08 percent of alcohol in the blood.
Police Issue a Ticket. Armed with this suspicion, the police officer can charge you with drunk driving by issuing a summons and complaint in the form of a traffic ticket. This summons commands you to appear in the municipal court of the municipality in which he or she claims you for a first appearance, called an arraignment.
First, Plead Not Guilty. At arraignment, your plea should almost always be NOT GUILTY. The judge will also ask if you want to hire a lawyer and, if so, whether you can afford one. Indigent defendants can obtain a Form 5A: Application for Public Defendant to apply for legal representation. Most municipal courts have these forms available on request. If you use one, try to keep a copy for your records.
Hire a Lawyer.
Review Discovery. Once retained, your lawyer and you should consider changing the not guilty plea only after reviewing discovery -- i.e., documents and other information received from the State before trial. After this review:
Decide. Plead NOT GUILTY if sentence on a guilty plea will be about the same as the sentence on a guilty finding after trial or if you are prepared to accept the maximum sentence if you lose. Plead GUILTY if serious aggravating factors exist and you have real risk of imprisonment or other unacceptable consequence that can be avoided with a guilty plea.
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q What the State Must Prove to Convict You
q What the State Must Prove to Show a Breath Test Reliability
q Documents Drunk Driving Defendants Should See Before Deciding What to Do
q Documents Breath Test Refusal Defendants Should See Before Deciding What to Do
q Additional Trial Preparation: When to Hire an Expert
NEW JERSEY LICENSE SUSPENSION LAWS
LAW OFFICES OF JOHN MENZEL, J.D.
What the State Must Prove to Convict You
Prerequisites. Almost all drunk driving charges arise from arrests which are considered warrantless seizures. Seizures made without an arrest warrant are presumed to be unreasonable. Thus, the State must establish that the officer had probable cause to (a) stop you, and (b) arrest you for drunk driving. Probable cause is a reasonable basis to act, usually involving a suspicion that you violated the law. The State must establish probable cause by a preponderance of the evidence.
Elements of Drunk Driving. Once these prerequisites are established, the court can consider the elements of the offense. To convict you of drunk driving, the State must prove beyond a reasonable doubt that you
q operated or intended to operate
q an operable motor vehicle
q while either (a) under the influence of liquor, narcotic, hallucinogenic, habit-producing drug, or marijuana or (b) with an alcohol concentration of 0.08 per cent by weight of alcohol in your blood or breath
Defenses to Drunk Driving. Defenses to drunk driving charges focus on the elements. If the State fails to establish the elements or if you present evidence that gives rise to a reasonable doubt about the elements, you can win and the court will find you not guilty.
Elements of Breath Test Refusal. Breath test refusal is a separate offense for which the court imposes separate punishments in addition to those for drunk driving. To convict you of breath test refusal, the State must prove by a preponderance of the evidence (i.e., more likely than not) that the arresting officer:
q had probable cause to believe that you were driving or in actual physical control of a motor vehicle on the public highways or quasi-public areas of this state while under the influence of liquor, narcotic, hallucinogenic, habit-producing drug, or marijuana
q arrested you for drunk driving
q asked you to submit to a breath test
q received an answer that was either negative or conditional
Defenses to Breath Test Refusal. Affirmative defenses are defenses that require you to prove that something prevented you from submitting breath samples. New Jersey law recognizes few such defenses to breath test refusal. Affirmative defenses include (a) confusion about your legal obligation to submit a breath sample (not confusion caused by intoxication) arising from your misimpression of those rights or incorrect advice from the police officer, and (b) a physical inability to give sufficient breath samples due to certain medical conditions like trauma, emphysema, or asthma.
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q When and How to Plead
q What the State Must Prove to Show a Breath Test Reliability
q Documents Drunk Driving Defendants Should See Before Deciding What to Do
q Documents Breath Test Refusal Defendants Should See Before Deciding What to Do
q Additional Trial Preparation: When to Hire an Expert
NEW JERSEY LICENSE SUSPENSION LAWS
LAW OFFICES OF JOHN MENZEL, J.D.
What the State Must Prove to Show Breath Test Reliability
Breath Tests. Breath testing is by far the most common way of testing for blood alcohol content ["BAC"]. The Breathalyzer is by far the most commonly used machine to test breath in New Jersey. Before the court can hear what Breathalyzer test results are, the State must establish certain things:
q The instrument was working properly
q The officer who operated the machine was certified by the Attorney General to use it
q Radio frequency interference did not affect the machine
q The test was given correctly with the testing officer following a special check list
q At least two test were given between six and 15 minutes apart
q The test results were within .01 of each other
q Chemicals in glass ampoules used in the test were of the proper amount and mix
The New Jersey Attorney General has approved a new instrument for breath testing -- the National Drager Alcotest 7110. Before the court can hear what Breathalyzer test results are, the State must establish certain things:
q The instrument was working properly
q The officer who operated the machine was certified by the Attorney General to use it
q The test was given correctly with the testing officer following a special check list
q There is a printout of the test results
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q When and How to Plead
q What the State Must Prove to Convict You
q Documents Drunk Driving Defendants Should See Before Deciding What to Do
q Documents Breath Test Refusal Defendants Should See Before Deciding What to Do
q Additional Trial Preparation: When to Hire an Expert
NEW JERSEY LICENSE SUSPENSION LAWS
LAW OFFICES OF JOHN MENZEL, J.D.
Documents Drunk Driving Defendants Should See
Before Deciding What to Do
If you were charged with drunk driving, you should get copies of these documents from your lawyer:
q Police copies of the Summons and Complaint
q Drinking-Driving Report, including
q an observations check-off sheet and
q a narrative of investigation
q DMV Standard Statement
q Alcohol Influence Report, including
q chemical test information
q full identification of the machine used
q the type of machine used
q the machine's manufacturer
q the machine's model number
q the time tests were given
q sample volumes (Alcotest only)
q test results
q simulator solution test times, volumes, and results (Alcotest only)
q air blank test times and results (Alcotest only)
q air blank test results (Breathalyzer only)
q a breathalyzer operational checklist
q Breath Test Instrument Inspection Certificates, which show results of periodic inspection of the machine:
q one dated before your breath test
q one dated after
q others from the year before your arrest
q one showing when this machine was placed in service
q Breathalyzer Operator Certification Card for the officer conducting the breath tests
q Assay report for ampoule chemicals
q State Police certificate of analysis for breath alcohol simulator solution
q Documents you signed, if any
q Any other police reports
_____________________________________________________________________________
q When and How to Plead
q What the State Must Prove to Convict You
q What the State Must Prove to Show a Breath Test Reliability
q Documents Breath Test Refusal Defendants Should See Before Deciding What to Do
q Additional Trial Preparation: When to Hire an Expert
NEW JERSEY LICENSE SUSPENSION LAWS
LAW OFFICES OF JOHN MENZEL, J.D.
Documents Breath Test Refusal Defendants Should See
Before Deciding What to Do
If you were charged with breath test refusal, you should get copies of these documents from your lawyer:
q Police copies of the Summons and Complaint
q Drinking-Driving Report, including
q an observations check-off sheet
q a narrative of investigation
q DMV Standard Statement
q Alcohol Influence Report, including
q full identification of the machine used
q the type of machine used
q the machine's manufacturer
q the machine's model number
q an indication about the alleged refusal
q Breath Test Instrument Inspection Certificates showing the availability of a testing device
q Breathalyzer Operator Certification Card for the officer available for breath testing
q Documents you signed, if any
q Any other police reports
_____________________________________________________________________________
q When and How to Plead
q What the State Must Prove to Convict You
q What the State Must Prove to Show a Breath Test Reliability
q Documents Drunk Driving Defendants Should See Before Deciding What to Do
q Additional Trial Preparation: When to Hire an Expert
NEW JERSEY LICENSE SUSPENSION LAWS
LAW OFFICES OF JOHN MENZEL, J.D.
Additional Trial Preparation: When to Hire an Expert
Breathalyzer Defects. If a defect afflicts the breathalyzer or its operation, the defense may call an expert witness, often a factory trained breathalyzer technician formerly certified by the Attorney General as a Breath Test Coordinator Instructor with the New Jersey State Police. The New Jersey State Police opposes defense attempts to call presently certified Breath Test Coordinator Instructors as experts for the defense.
Medical Issues. Consider hiring a medical doctor if you have a health problem that affects breath test results -- e.g., diabetes, hypoglycemia, asthma, fever, ulcers, hiatal hernia, and use of certain medications--or causes you to sway, stagger, have bloodshot watery eyes and droopy lids, fumble and move your hands slowly, and show other signs that may be mistaken for intoxication -- e.g., diabetes, hypoglycemia, inner ear and eye disorders, neurological deficits, and allergies.
Other Experts. Creative lawyers often use other experts, depending on what may be at issue in a particular case. Consider
q accident reconstruction experts
q engineers
q surveyors
q mechanics
q others
Reciprocal Discovery. Other items helpful not only to bolster expert testimony but also to assist in a factual presentation to the court. If you or your lawyer want to show such items to the court, court rules generally require that the State be given notice and either given copies or a chance to inspect them. Such items can include
q photographs
q tax maps
q zoning maps
q satellite images
q medical records and x-rays
Investigators. Investigators are experts who know how to interview witnesses and find out information from canvassing the scene or preserving custody of items which other experts may need to examine. Investigators can help by doing legwork for lawyer and client.
_____________________________________________________________________________
q When and How to Plead
q What the State Must Prove to Convict You
q What the State Must Prove to Show a Breath Test Reliability
q Documents Drunk Driving Defendants Should See Before Deciding What to Do
q Documents Breath Test Refusal Defendants Should See Before Deciding What to Do
NEW JERSEY LICENSE SUSPENSION LAWS
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