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DaSilva & Pinho, LLC
A T T O R N E Y S A T L A W
The Ten Most Frequently Asked Question Regarding Drunk Driving
by John M. Pinho
1. What does the State (Police Officer/Prosecutor) need to prove to convict me of driving while intoxicated (DWI) in New Jersey?
To convict a person of driving while intoxicated the State must prove beyond a reasonable doubt that the person operated or intended to operate a motor vehicle, which was operable while (a) under the influence of intoxicating liquor or under the influence of a narcotic, hallucinogenic, or habit producing drug, or (b) with an alcohol concentration of .10 % in the person's blood or breath.
(a) Under the influence has been broadly defined as a person who has consumed alcohol to the extent that his physical or mental faculties are deleteriously affected.
(b) Blood alcohol concentration of .10% or more.
The State can prove by use of a Breathalyzer reading that a person's Blood Alcohol Concentration (BAC) is .10% or more.
A careful review of the breath test results may show that the reported BAC may not be accurate.
The State must prove the following before the court can rely upon the BAC reading results:
(1) The Breathalyzer equipment was in proper working order. In other words, that the equipment was periodically inspected in accordance with accepted procedures and found to be operating correctly.
(2) The Police Officer was properly certified to administer the test.
(3) The test was given correctly in accordance with official instructions and accepted procedures.
(4) The equipment is not radio frequency interference sensitive.
(5) Production of Breath Testing Instrument Inspection Certificates indicating random sample testing of ampoules from the same batch used in defendant's test both before and after the person's examination.
2. What are the penalties if I am convicted or plea guilty to driving while intoxicated (DWI)?
First Offense*
(1)Fine $250.00-$400.00
(2)Drunk Driving Enforcement Fund $100.00
(3)Court Costs $3.00-$33.00
(4) Victims of Violent Crime $50.00
(5) Safe Neighborhood Surcharge $75.00
(6)Physician's Fee $0.00 - $20.00
Total Fee $478.00-$678.00
Attendance of Course at Intoxicated Resource Center 12-48 hours
Loss of License 6-12 months
Imprisonment 0-30 days
Restoration of driving privileges is not automatic and is subject to Division of Motor Vehicle Approval.
Second Offense*
(1)Fine $500.00 -$1000.00
(2)Drunk Driving Enforcement $100.00
(3)Court Costs $3.00 - $33.00
(4)Victims of Violent Crime $50.00
(5)Safe Neighborhood Surcharge 75.00
(6)Physician's Fee$0.00 - $20.00
Total Fee $728.00 -$1278.00
Loss of License 2 years
Community Service 30 days
Imprisonment 2-90 days
Imprisonment can be commuted to 48 hours Intoxicated Driver Resource Center and inpatient rehabilitation treatment.
Restoration of driving privileges is not automatic and is subject to Division of Motor Vehicle Approval.
Third or subsequent Offense*
(1)Fine $1000.00
(2)Drunk Driving Enforcement $100.00
(3)Court Costs $3.00 - $33.00
(4)Victims of Violent Crime $50.00
(5)Safe Neighborhood Surcharge $75.00
(6)Physician's Fee$0.00 - $20.00
Total Fee $1228.00 -$1278.00
Loss of License 10 years
Imprisonment180 days
Imprisonment can be commuted to inpatient rehabilitation treatment, outpatient rehabilitation services, and 90 days of community service.
Restoration of driving privileges is not automatic and is subject to Division of Motor Vehicle Approval.
* Note: These fines are subject to change.
3. What are the consequences of my refusal to submit to a Breathalyser examination?
The refusal to undergo Breath Analysis is a separate offense from DWI and can result in a conviction with additional fines and loss of license.
If your stopped and accused of driving under influence, you should submit to the breathalyzer examination to establish that you are not over the legal limit.
If your Blood Alcohol Concentration is not over the legal limit (.10% or greater) than you may be exonerated.
If you refuse to submit a breath sample, you will have a loss of license for at least 6 months even if the Judge finds that the State has not proved beyond a reasonable doubt that you were Driving Under the Influence.
4. Can I get a temporary license to drive to and from work?
No. The suspension of your driving privileges is absolute, the Judge cannot issue you a special license. So if you are convicted or plea guilty you cannot operate a motor vehicle for the period of suspension. You must also apply to the Division of Motor Vehicles and pay a restoration fee before you can legally operate a vehicle. There are additional fines, loss of license and imprisonment. You should make arrangements to get to and from work before the Court sentences you so you can minimize the disruption to your life. A Judge however can issue a temporary license to allow you to drive home from the Court.
5. Do I have to make full payments of fines and costs the day I am convicted or plea guilty?
Maybe. Some Judges after you have established that you qualify for time payments may allow you to pay the fines over a period of time usually not greater than six months.
If however you miss a payment, the Court may issue a warrant for your arrest and require payment in full.
It is recommended that your pay as much of the fine up front to show your good faith effort to pay. A judge is more likely to allow for a time payment if he/she sees your genuine effort to pay as much up front as you can.
6. How can an attorney assist me in my defense?
An attorney, experienced in representing persons accused of driving under the influence, can review the documents that the State has to prove that a person was driving while under the influence and determine whether what appeared to be driving while intoxicated was in fact that. An attorney can also hire an expert witness who is trained in the use of the breathalyzer equipment to establish (if true) that there was an error in the administration of the test, or the machine was producing a false reading to establish that the results produced as a result of the breath analysis are not reliable and should not be admitted as evidence in Court.
7. What are the costs associated with hiring an attorney?
Attorney Legal Fees vary. Most attorneys charge on an hourly basis. Some attorneys will agree to represent a client for a fixed fee for reviewing the strength of the state's case and minimizing the costs and penalties associated with entering into a guilty plea to driving while intoxicated.
If the matter is one that should be tried, an attorney will most likely charge on an hourly basis and may request a retainer to be billed against for legal fees and costs incurred in the defense and trial of the case. Most attorneys will exclude appellate work from the Retainer Agreement or request an additional retainer if an appeal is contemplated.
Call the Law Office of DaSilva & Pinho at (973) 344-0808 for a free initial consultation. We represent individuals charged with DWI and Refusal Charges throughout the State of New Jersey.
8. What are my chances of being found not guilty after a DWI trial?
It depends upon the strength of the State's proofs. An attorney can evaluate the strength of the State's case and provide you with an opinion on the likelihood of a not guilty finding.
9. If I am convicted at trial, can I appeal?
Yes. A Notice of Appeal must be filed within 20 days of the conviction. The Municipal Court will usually provide you with a Notice of Appeal Form if you request same.
You must pay a filing fee and make a deposit for a transcript; provide notice of the appeal to the Judge, Prosecutor, and Municipal Clerk(s).
10. If I plea guilty to DWI can that plea be used against me in a lawsuit brought against me by someone I may have injured?
Yes, unless you or your attorney specifically asks the Municipal Court Judge to mark your plea not to be evidential in a civil case.
© 2000, 2002 DaSilva & Pinho, LLC
Office Locations:
120 Van Buren Street
(Corner of Ferry Street)
Newark, New Jersey 07105
Phone: (973) 344-0808; fax: (973) 344-3838
301 North F.E.Rodgers Blvd.
Harrison, New Jersey 07029
Phone:(973) 481-4364; fax (973) 481-4756
Email: Attorney@DaSilvaPinho.com
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright ©2002 by The Law Office of DaSilva & Pinho LLC. All rights reserved.
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