Common Questions - Myth vs. Fact
Ask a Knowledgeable New Jersey DUI Lawyer
1. If my license gets suspended for a DWI conviction, can I obtain a conditional
license that will allow me to drive to work?
No. Contrary to popular belief, New Jersey does not have a conditional driver's
license program or work license program. If you sustain a
DWI / DUI or chemical test refusal conviction, your license will be suspended and
you will not be permitted to drive under any circumstances—no exceptions.
Moreover, if you are caught driving while your license was suspended due
to a DWI or a refusal conviction, you are subject to the traditional penalties
for a violation of driving while suspended,
as well as additional "enhanced" penalties. These enhanced penalties include
an additional 1- to 2-year license loss, an additional large fine, and
a mandatory minimum of 10 to 90 days in jail. There are no exceptions
to the jail term.
2. Can I talk to the prosecutor about working out a plea bargain for my
DWI or refusal charge?
No. By order of the New Jersey Attorney General, plea bargaining DWIs and
refusal charges is prohibited. Your DUI attorney can identify defenses
in your case, such as lack of probable cause to stop you, lack of probable
cause to arrest you for a DUI, inaccuracies or failures in the Alcotest
process used by the police, inaccuracies or improper calibration of the
DWI Alcotest device, and many other issues. After presenting these defenses,
your attorney may be able to convince the municipal prosecutor to exercise
his or her "prosecutorial discretion" and provide you a better
alternative to a DWI or refusal conviction.
3. If I am convicted of DWI or refusal, can I have that conviction expunged
from my record?
No. Under New Jersey expungement law (N.J.S.A. 2C:52-6) and the interpretive
cases, motor vehicle offenses are not expungable. This means that a DWI
or a refusal conviction will be on your record permanently.
4. If my BAC reading was below .08% or I refused to provide breath samples
and I have no reading, can the state still convict me for DUI?
Yes. If your blood alcohol concentration (BAC) is.08% or above, the state can
prove the case under what is known as a "per se" violation.
This means that if the as prosecutor is successful in introducing the
Alcotest blood alcohol reading, he or she will be able to prove that you
were intoxicated. Of course, that means that the prosecution must jump
through all of the procedural hoops to safeguard the accuracy of the Alcotest
device. Your DWI / DUI defense attorney may find that there has been a
failure to meet all the procedural safeguards.
Another thing to consider is that the state can prove a DWI charge by the
officer's observation of your driving, as well as by field observations
during your traffic stop (such as fumbling for documents and the smell
of alcohol on your breath). Additionally, the officer may have asked you
to perform certain standardized field sobriety tests. Based on the totality
of the observations, the court can convict you of DUI without a BAC reading.
You should know that many police officers and prosecutors are unaware
of the correct standard field sobriety tests and may attempt to introduce
tests that are scientifically unreliable. A DUI defense attorney can assist
in pointing out these discrepancies.
5. I was charged with a breath test refusal, and I was also charged with
DWI. Will my refusal charge get dismissed because of my DWI charge?
Not necessarily. If this is a first DWI / DUI offense for you, the court is compelled by
New Jersey Attorney General Guidelines to not dismiss the refusal charge.
That means the state will attempt to convict you of the DWI charge
and the refusal charge. Combined, these two charges carry 10 to 19 months
of license loss on the first offense. For the prosecution to sustain a
conviction under a refusal charge, however, it must show that the refusal
was unequivocal and that there was no language barrier in your case.
Furthermore, once you refuse the breath test, law enforcement must exercise
additional procedural safeguards by reading you certain warnings. Under
new case law, if the additional warnings are not read to you, your refusal
charge could possibly be dismissed. In addition to that, recent case law
now requires the state to prove a refusal charge beyond a reasonable doubt—just
like any other criminal charge. This makes the prosecution's case
more difficult to prove.
6. If I have out-of-state license and I am convicted of DWI in New Jersey,
will I still be required to pay the $1,000-per-year surcharge to the New
Jersey Motor Vehicle Commission?
Yes. Even if you have an out-of-state driver's license, case law allows
the New Jersey Motor Vehicle Commission to assess the surcharge of $1,000 per year.
7. Does a DWI conviction carry motor vehicle points?
No. In New Jersey, neither a DWI / DUI conviction nor a refusal conviction
carries motor vehicle points. They do, however, carry tremendous
financial consequences, as well as
penalties such as license loss and potential jail time. Moreover, most insurance
companies will assess up to 9 insurance points against your driving record
for a DWI or refusal conviction.
Insurance companies use both motor vehicle points and insurance points
to assess whether you are a risky driver. Riskier drivers are charged
substantially higher premiums or can be dropped from coverage altogether
under certain circumstances. Finally, the New Jersey Motor Vehicle Commission
will collect $1,000 per year from you for 3 years as a surcharge for any
DWI or refusal conviction.
If you have further questions for our skilled New Jersey DUI lawyer,
call the Law Offices of Christopher L. Baxter at 856-235-9881.