New Jersey DWI -- Preparing For Trial

When and How to Plead:

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 to:

  • 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.

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:

  • operated or intended to operate
  • an operable motor vehicle
  • while either
  • under the influence of liquor or
  • with an alcohol concentration of 0.10 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:

  • 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 intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana
  • arrested you for drunk driving.
  • asked you to submit to a breath test
  • 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.

What the State Must Prove to Show Breathalyzer 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 breath test results are, the State must establish certain things:

  • The machine was working properly.
  • The officer who operated the machine was certified by the Attorney General to use it.
  • Radio frequency interference did not affect the machine.
  • The test was given correctly.
  • Chemicals in glass ampoules used in the test were of the proper amount and mix.