Second DWI Conviction - N.J.S.A. 39:4-50(a))

woman being pulled over by police

New Jersey DWI Statutes

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.

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. Consuming even small amounts of alcohol dulls the senses, decreases reaction time, and hampers judgement, vision and alertness. If a person consumes any amount of alcohol and law enforcement officials can prove that their driving was negatively impacted, they can be charged with DWI.

If you have been charged with DWI for the second time, you could be facing monetary fines, loss of license, and/or jail time.

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 by defendant¹s own admission.

It is possible that the defendant may have been in the driver's seat of their vehicle while the vehicle was parked in a parking lot with the keys on the dashboard and the police may deem the defendant as having 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 attempts to put the keys in the ignition of the vehicle is guilty of driving while intoxicated. Although the individual may never actually drive the vehicle after leaving a bar and may never actually place the keys in the ignition, the New Jersey Supreme Court has held that the intent of the driver is clear and thus sufficient to satisfy operation of the motor vehicle.

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 of law enforcement intervention (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 right on the side of the road, etc) and any other factors relevant to establishing intent.

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
  • forfeit their right to operate a motor vehicle over the highways of New Jersey for a period of one (1) to two (2) years upon conviction
  • Required to install an ignition interlock device for a period of twenty four (24) to forty eight (48) months after their drivers 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

What are Possible Defenses to Driving While Intoxicated?

There are several legitimate defenses to a 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 are a great deal of requirements relating to the care and maintenance of breathalyzer machinery. Each machine must be cared for and calibrated in a certain way. If law enforcement officials fail to observe any of these requirements, it could lead to a false positive reading. 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.

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!