Second DWI in NJ: Understanding Your Rights and Penalties

New Jersey DWI Statute N.J.S.A. 39:4-50

Driving while Intoxicated (“DWI”) is defined in N.J.S.A. 39:4-50. Under this law, it is illegal to operate a motor vehicle while under the influence of an intoxicating alcoholic substance and illegal to operate a motor vehicle with a blood alcohol concentration (BAC) of .08% or greater. In the context of a first offense DWI three tiers affect the mandatory minimum sentence, (<.08->.10), (<.10->.15), and (<.15) however with a subsequent offense the BAC becomes less important as the mandatory minimum of a one-year loss of license must be imposed. The blood alcohol concentration is a factor for consideration by the court in sentencing. A higher blood alcohol content reading can have an impact on the Judge's sentence.

It is important to note that a person can be convicted of driving while under the influence of alcohol even when their blood alcohol concentration (BAC) is below 0.08 percent or if there is no reading at all. Even small amounts of alcohol can arguably alcohol dull the senses, decrease reaction time, and hamper judgment, vision, and alertness. If a person consumes any amount of alcohol police officers can testify that that they are manifesting evidence of being under the influence and can be charged with DWI. In the context of a refusal to submit to the breath test, there is no reading for the officer to rely upon at trial. Still, DWI convictions often result when circumstances show that the person was under the influence of alcohol or drugs and that their ability to safely operate a motor vehicle was impaired.

What is The Ten-Year Step-Down?

The ten-year stepdown saves some defendants from second-offense DWI status. The law provides that if 10 years have passed since your first DWI then you are entitled to a step down which allows a second DUI NJ to be treated as a first offense for sentencing purposes. This means that the reading then comes back into play and the 3 tiers applicable in a first offense DWI become important once again. The police officer is not required to write the summons as a second DUI offense. The officer will issue a DWI or DUI which are essentially used interchangeably in NJ. The issue of subsequent offenses for sentencing purposes will come up during the discovery stage when analyzing a defendant's driver history.

Consequences of Driving While Intoxicated (2nd Offense)

For a second DWI violation, a person will be:

  • Subject to a fine between $500 and $1,000,

  • Ordered by the court to perform community service for a period of 30 days,

  • Sentenced to imprisonment for a term of not less than 48 consecutive hours and no more than 90 days (the 48 hours can be at the intoxicated driver's resource center in lieu of jail if the Judge permits it),

  • license suspension for a minimum period of one (1) year to a maximum of two (2) years upon conviction,

  • Required to install an ignition interlock device during the period of license suspension on the defendant's vehicle which must remain on the vehicle after license restoration for a minimum period of twenty-four (24) months to a maximum of forty-eight (48) months after their driver's license is restored.

In addition to the penalties listed above, additional penalties also include:

  • A $100 surcharge to be deposited in the Drunk Driving Enforcement Fund,

  • A Motor Vehicle Commission restoration fee of $100 and an Intoxicated Driving Program fee of $100,

  • A Violent Crimes Compensation Fund fee of $50,

  • A Safe and Secure Community Program fee of $75

Operation of a Motor Vehicle

As seen in State v. Morris, 262 N.J. Super. 413, 417 (1993), the term “operate” must be given broad construction. In New Jersey, a person need not be actually driving a vehicle in order to satisfy the element for a DWI conviction. Instead, the operation element may be satisfied by any direct or circumstantial evidence of an observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated or was intending to operate the motor vehicle. This can happen by the admission made by the person or from the surrounding circumstances

Proving "Operation" Does Not Require an Officer Witness Driving

It is possible that the defendant may have been parked yet the police officer may determine that the defendant operated the vehicle. Police will often look to the intent of the driver in determining whether or not he or she was "operating" the vehicle. Case law in New Jersey makes it clear that an individual who intends to drive attempts to put the keys in the ignition of the vehicle can be guilty of driving while intoxicated. Although the individual may never actually drive the vehicle or place the keys in the ignition, the New Jersey Supreme Court has held that when the intent of the driver can be proven a conviction can stand.

Proving Intent to Drive or That the Car Was Driven

To prove intent, the state will examine the circumstances, which can include whether or not the car was on/running; whether the driver was awake or sleeping; the location of the keys at the time the police or a witness arrived (keys in the ignition vs the glove compartment could speak to the intent of the driver); where the car was located at the time of the DWI stop (in a parking lot, or on the side of the road, etc.) and any other factors relevant to establishing intent.

What are Possible Defenses to a Second Offense Driving While Intoxicated?

There are many defenses to a second offense DWI charge, including:

BAC Reading was Incorrect: In New Jersey, a reading of a BAC at or above .08 percent is sufficient to sustain a DWI conviction. However, it is possible that the machine used to take the initial reading was malfunctioning or not properly maintained. There is a requirement to establish the instrument measure correctly within the tolerances proscribed by the case law. A tolerance calculation is performed and if the reading is out of tolerance the reading will not stand.

Improper administration of the Test There are several requirements relating to the care and maintenance of breathalyzer machinery. Each machine must be cared for and calibrated in a certain way. The instrument must be operated according to state and manufacturer's guidelines to be accepted into evidence. If law enforcement officials fail to observe any of the procedural requirements, it could lead to a suppression of the blood alcohol results. Additionally, law enforcement officials must conduct breath tests in a proscribed manner. If officers deviate from established protocols, the breath test results could be affected. In addition, certain medical conditions (including diabetes) can cause a driver to have an artificially inflated breath test.

Field Sobriety Test Was Improperly Administered: If the state is attempting to prove intoxication by way of a failed field sobriety test, it is possible that the test could have been improperly administered. A driver can only be brought in for testing if the officer establishes that they had probable cause for the drunk driving arrest. If the field sobriety tests were not administered correctly then an argument could be made that the police officer did not have sufficient probable cause to make an arrest.

If you have been arrested for a second DWI in New Jersey and would like to explore your options, call the attorneys of Villani & DeLuca, P.C. at 732-372-0820 The initial consultation is always FREE and our DWI lawyers can review your case and help decide the best defensive strategy for your second DWI. Call today!