Driving While Intoxicated – First Offense
Under the law, it is illegal for a person to operate a motor vehicle while under the influence of an alcoholic beverage, or some type of narcotic, habit producing drug, or operate a vehicle with a blood alcohol concentration of 0.08% or greater. It is also illegal to allow someone else to operate your vehicle in the above state. If one is charged with DWI as a first offender, there are different tiers of sentencing, depending on the percentage of your blood alcohol concentration.
Tier One: You have a BAC (blood alcohol concentration) of less than .10%, or there is no reading because you refused or the State is unable to prove that the machine was in proper working condition. Here you will face a 3 month suspension of your driving privileges, a $250.00 to $400.00 fine as well as other State imposed monetary penalties. Also a 12 to 48 hour sentence in the IDRC (intoxicated driver resource center) will be imposed. In addition, you face the possibility of interlock device installation being required and up to 30 days imprisonment.
Tier Two: If you have a result of over .10 and the State is successful in their prosecution, you are subject to second tier penalties. You’re driving privileges will be suspended from 7 months to 1 year. You will have to spend 12 to 48 hours in IDRC and again will be subject to fines as well as surcharges from DMV and your insurance company. If your reading is higher than a .15, the additional penalty of having to install an interlocking device in your vehicle will apply.
– Second or Third Offense
If this is your second or third offense for DWI in New Jersey, the tier system does not apply. If you are convicted of DWI as a second or third offender, you will lose your privilege to drive in New Jersey as well as face jail time (mandatory for third offense) and fines. There are also collateral consequences that apply to a conviction for a second or third offense DWI.
Miranda Rights
– It is a common thought among those charged with DWI that because they were not read their Miranda Rights, the case should be dismissed. Miranda Rights only apply in something called a custodial interrogation. This means that you are not free to leave. While most people feel that they cannot just get in their car and drive away, the courts have found that most of the questions the police ask of a person occur before the person is technically in custody. Unfortunately what this means, is that the questions that occur at roadside are not considered custodial and therefore the police are under no obligation to provide you with your Miranda Rights.
Aggravating Factors at Sentencing for DWI
– There are certain factors that can enhance a sentence for DWI. A refusal to submit to the breath test; driving in a school zone; having an extremely high blood alcohol content; causing injury to someone; driving extremely recklessly; having prior DWI’s, driving on the revoked list due to a prior DWI; or even having a child in the car are just some to name a few. If any of the above circumstances were present, the prosecutor is entitled to ask for increased fines; license loss; and jail time.
Underage DWI
– If you are under 21 and drive with any amount of alcohol in your system (.01) you can be charged with an underage DWI. The penalties for a baby DWI as they call it are a 30 to 90 days license loss, participation in IDRC and 15 to 30 days of community service. If your blood alcohol content reaches the level of .08 and above you become subject to the penalties of an adult DWI.
Vehicle Checkpoints
– In a situation where you drove through a vehicle checkpoint, there are strict guidelines that must be followed. For example, the checkpoint must be announced to the public in advance and not allowed to be set up by the field officers. In addition, cars must be stopped in a random and neutral pattern as well as done in a safe and efficient manner.
Plea Bargaining
– Unfortunately, there is no plea bargaining DWI cases in the State of New Jersey. It is acceptable for the prosecutor to make certain sentencing recommendations to the Judge, but he can’t recommend dismissal or lowering the time of license suspension unless the defense lawyer has a good legal argument to put on the record. Absent that, in a case where it is a first offense and the possible license loss is anywhere from 7 to 12 months, the prosecutor may recommend to the Judge that he only sentence you to the minimum of 7 months. Also, it is possible for the prosecutor to move to dismiss some of the other traffic infractions you might have received in connection with the DWI. But to reiterate, a downgrade or dismissal only occurs when your lawyer makes a convincing legal argument.
Essex County NJ Criminal Attorney Blog 