Violation of New York and New Jersey drinking and driving laws is a serious traffic offense.
These violations include driving under the influence (DUI), driving while intoxicated (DWI), and
refusal to perform a breath test. If you have been cited for a DUI, DWI or other municipal court
offense, the possibility of going to court and facing significant penalties may be daunting. While
municipal court offenses are not as serious as other criminal offenses in New Jersey or New
York, they can still have a large impact on your driving record. Drunk driving offenses can also
affect your automobile insurance and your future. It is important to protect your interests by
hiring a knowledgeable lawyer.
The New Jersey Drunk Driving Statute States:
- A person cannot operate a motorized vehicle while under the influence of a habit
producing drug, hallucinogenic, narcotic, or intoxicating liquor.
- A person is deemed intoxicated if they have a blood alcohol content (BAC) of 0.08% or
higher by weight of blood
- A person cannot permit the operation of a motorized vehicle by another person who is
under the influence of a habit producing drug, hallucinogenic, narcotic, or intoxicating
Penalties of violation of the New Jersey Drunk Driving Statute include:
- First Offense DWI or DUI Violation: A fine of $250 to $400, mandatory participation in
programs at an Intoxicated Driving Resource Center (IDRC), possible license suspension
of up to 1 year, and up to 30 days in jail.
- Second Offense DWI or DUI Violation: A fine of $500 to $1000, up to 30 days of
community service, possible license suspension of up to 2 years, and up to 90 days in
- Third Offense DWI or DUI Violation: A $1000 fine, possible license suspension of up to
10 years, and up to 6 months in jail
Responsibilities of the State in a DUI/DWI Case
To prove violation of drinking and driving law, the State must provide proof of both intoxication
and of operating a motor vehicle. The State must show proof of intoxication or illegal drugs
in the defendant’s system. In addition, the state must provide proof a motor vehicle and of
operation of that motor vehicle to determine violation of the law.
Proving Operation of a Motor Vehicle
To determine vehicle operation the State often uses circumstantial evidence or actual
observation of the operator. Physical movement of a vehicle is not essential to satisfying the
requirement of operation. Evidence that the vehicle was capable of movement and that the
motorist had the intention to operate the vehicle is often enough to satisfy this requirement.
Evidence that that the vehicle was running or that the defendant inserted keys into the ignition
of the vehicle is usually enough for the State to establish intent to operate. The attorneys at
the Law Offices of Herbert I. Ellis, P.C., are well versed in the complications surrounding the
determination of operation.
Proving the Motorist was Under the Influence
In addition to proving the suspect actually operated or intended to operate a vehicle,
the state is also responsible for proving the person was under the influence of alcohol or
illegal substances. Being under the influence or intoxication is defined by New Jersey law
as “substantial deterioration or diminution of the mental faculties or physical capabilities of
a person” as a result of ingesting drugs or alcohol. Breath tests or blood tests are the most
common ways to determine alcohol intoxication. A blood alcohol context of at least 0.08%, the
legal limit, is necessary to prove intoxication. The breathalyzer is most commonly used in New
York and New Jersey to test breath samples for intoxication. The Alcotest is a newer method of
testing the breath for intoxication. However, there is current pending litigation regarding the
use of breath sample results from the Alcotest and admissibility of such results in DUI and DWI
Inability to determine intoxication using either blood or a breath sample may lead to field
sobriety testing to determine intoxication. Also known as psycho-physical testing, a law
enforcement officer may attempt to establish intoxication of a person using behavioral tests.
There is a certain inconsistency to field sobriety testing such as improper administration by the
law enforcement officer or subjective interpretation of the results.
In addition to intoxication from alcohol, a DUI summons may be a result of ingestion of illegal
drugs. To prove ingestion of illegal drugs, the state often relies on evidence from a trained and
certified Drug Recognition Expert (DRE). The state also requires urine or blood test results to
confirm the suspect had illegal drugs in their system.
Drinking and driving cases in New York and New Jersey may also involve sentencing
discrepancies which we can in some cases can work for the best possible result. The
breathalyzer readings can greatly affect the sentencing of a drinking and driving case. A Blood
Alcohol Concentration (BAC) reading of below 0.10% for first time offenders may in some cases
reduce the penalty or length of time the license is suspended. At the Law Offices of Herbert I.
Ellis, P.C., we will work toward having your BAC readings reduced or excluded to receive the
minimum sentence for the charge. Prior convictions can also affect sentencing. If you have a
prior drinking and driving case that resulted in a DWI charge, your second DWI case resulting
in a Refusal charge can involve more severe sentencing as this is a second offense. However,
if your first case resulted in a conviction for a Refusal rather than a DWI charge, you must be
sentenced as a first offender for the second DWI charge.
It is imperative to contact an attorney in New Jersey and New York that has experience in
handling DWI, DUI, and Refusal charges. Defenses against drinking and driving charges may
include lack of reasonable suspicion or lack of probable cause to stop a driver and test for
intoxication. Lack of a proper inspection, no certification of a breathalyzer machine, and illegal
traffic stops may also be suitable defenses in a drinking and driving case. Being arrested for
driving under the influence is not the end of the battle. Our DUI defense attorneys work with
you to learn all the facts about your traffic stop. We also investigate the matter further to
determine whether the breath tests were administered properly, if sobriety test protocols were
correctly followed and whether your Miranda warnings were given. If you have been charged
with a DUI or DWI, contact the experienced attorneys at Law Offices of Herbert I. Ellis, P.C. We
have experience and expertise in DUI, DWI, and other municipal court offenses and we will
examine all possible defenses in your case to help find you the resolution you deserve.