Understanding DWI in New Jersey

New Jersey has enacted harsh penalties for those that drive while under the influence of alcohol.  Every state has somewhat different laws addressing driving while intoxicated.  In New Jersey, driving while intoxicated is analogous with driving under the influence.  These two terms may be used interchangeably.

N.J.S.A. 39:4-50 governs DWI.  A DWI may arise if a driver’s blood alcohol concentration (BAC) level is 0.01% and above if an individual’s age is under twenty-one.  If one is at least twenty-one years old, the BAC must be 0.08% or higher.

The Process

First, the police must establish probable cause to stop you.  In basis terms, probable cause means that the police have reasonable information to suspect that you have committed a wrong. The police must establish probable cause based on a preponderance of the evidence. This standard may be defined as more likely than not.  Once the police establish probable cause to suspect you of driving while under the influence, they must establish the following:

  1. you were operating or intended to operate a motor vehicle
  2. motor vehicle must be operable
  3. you were under the influence of alcohol OR
  4. you had a BAC of at least 0.08% based on the weight of alcohol in your blood or your breath

The state will usually ask you to take a breathlyzer test to determine the amount of alcohol in your body.  All New Jersey driver’s must consent to taking this breathlyzer test.  The police may file a complaint against you if you refuse to take a breathlyzer test.  The refusal to take the breathlyzer test is a offense separate from the DWI offense.

Field Sobriety Tests

The police may ask you take standardized field sobriety tests if you are stopped for driving while intoxicated.  The purpose of these tests is for the police to determine whether probable cause exists for DWI.  The statutory laws of New Jersey do not require one to consent to these tests.  These tests include the horizontal gaze nystagmus test, the walk & turn and one-legged stand.   In order for the police to detain you or take you to the police station to take a breathlyzer test, the police must first establish that there is probable cause that you were DWI.  This is why they ask you to take the field sobriety tests.

The National Highway Transportation Safety Administration (NHTSA) recommended and approved the standardized field sobriety tests as a meaningful method for an officer to form an opinion of the level of impairment of a driver suspected of DWI.


Strategies to Beat a DWI Complaint

Each case is different.  We suggest contacting our office to discuss strategies that would be meaningful in your case.  However, the below strategies are described for informational purposes:

  • Was there probable cause for the stop?
  • Did the police conduct the field sobriety test correctly?
  • Did the police properly conduct the Alcotest testing?
  • Were blood samples or breath samples taken properly?
  • Did police obtain the evidence lawfully?

Usually, the police will also charge one with DWI with reckless driving.  N.J.S.A 39:4-96 addresses reckless driving.  This includes  engaging in “heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property.”  A conviction for reckless driving may be separate or additional to the DWI charge (i.e. you may be convicted for DWI and reckless driving).  The penalties for DWI include incarceration of up to 60 days, and fines between $50 – $200 for a first time offender.  The court may also suspend your license for up to 90 days.  Additionally penalties will apply for subsequent convictions.

Useful Links

Click here for a description of penalties in New Jersey for DWI.

Click here for a internal directive issued by the Attorney General to all Municipal Prosecutor’s and County Prosecutor’s relating to DWI.

Click here for a field sobriety testing student manual.

Click here for case analysis of 2016 New Jersey cases dealing with DWI.

Click here for a law enforcement guide.


DWI laws are complex.  The penalties are very harsh.  Contact our office for a free consultation or case evaluation.  We will review the specific facts of your case.  We will explain the strengths and weaknesses of your case.  We will provide your with a written proposal of our fees if you select us to represent you.