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Impairment vs. Intoxication: Is There a Difference?

May 24, 2022 | Posted In Drunk Driving

The initials “DUI” stands for “driving under the influence.” While most people think of being “under the influence” as having a high blood alcohol concentration (BAC), this is not the only way you can face a DUI charge in New Jersey. This is due to the distinction between impairment and intoxication. Learn more from an experienced New Jersey DUI defense lawyer.

Understanding New Jersey’s Drunk Driving Law

To understand the distinction between impairment and intoxication in New Jersey, we need to look at the state’s DUI law. Under Section 39:4-50 of the New Jersey Revised Statutes:

“A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, or hallucinogenic or habit-producing drug, or  . . . with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood . . . [is guilty of DUI].”

As you can see, New Jersey’s DUI law allows prosecutors to secure a conviction for driving under the influence or driving with a BAC of 0.08 percent or above (if you are over 21). This means that if you are impaired, prosecutors do not also need to prove that you are intoxicated (i.e., you have a high BAC). Conversely, if you are intoxicated, prosecutors do not need to prove that your intoxication actually impaired your ability to drive.

This distinction is critical in New Jersey DUI cases. If you are facing a DUI charge, it is essential to know if the prosecution has evidence of impairment, intoxication or both. As discussed in greater detail below, this will have a significant impact on the defenses you have available.

When the Distinction Between Impairment and Intoxication Matters (and When It Doesn’t)

So, now that we know there is a distinction between impairment and intoxication in New Jersey DUI cases, we can focus on understanding why this distinction matters. In some respects, this distinction is extremely important, and in others, it does not matter at all.

When It Matters: Defending Against a DUI Charge In New Jersey

The distinction between impairment and intoxication matters when determining what defenses you can use to fight your DUI charge. Let’s say prosecutors are seeking a conviction based on impairment. In this scenario, your BAC is irrelevant. Even if your BAC was below 0.08 percent at the time of your arrest, prosecutors may still be able to secure a conviction based on evidence of impairment. This could include evidence such as:

  • The arresting officer’s observation of your erratic driving behavior
  • Dash camera footage of your erratic driving behavior
  • Your slurred speech
  • Your inability to walk steadily or communicate clearly
  • Your performance on the field sobriety tests

This means that you can face a DUI conviction even if you refused the breathalyzer during your traffic stop. While prosecutors may not have your BAC to use against you, they may still have various other forms of evidence they can use to prove that you were impaired behind the wheel.

Now, let’s consider the opposite scenario: You got stopped at a sobriety checkpoint and blew 0.08 percent on the breathalyzer. However, you showed no signs of impairment during your stop, so your BAC is the only evidence prosecutors have against you.

In this case, prosecutors would pursue a conviction based on intoxication. Your BAC was above the legal limit, and that is all that matters. Regardless of whether you were impaired, you were intoxicated while behind the wheel, and this is against the law in New Jersey.

Knowing how prosecutors intend to pursue your case is essential for knowing what defenses you can and should use. If prosecutors have evidence of impairment, then focusing solely on challenging the validity of your BAC reading will not be enough. Likewise, if prosecutors have a reliable BAC reading, you won’t be able to avoid a conviction by arguing that you were not actually impaired while behind the wheel.

These considerations make it extremely important to hire an experienced New Jersey DUI defense lawyer to represent you. Your lawyer will be able to determine how the prosecution is approaching your case, and examine the evidence prosecutors have available. Your lawyer will also be able to assess whether this evidence is admissible in court and seek to challenge any evidence that could prove problematic for your defense.

When It Doesn’t Matter: Facing Penalties for DUI in New Jersey

While the distinction between impairment and intoxication is important for how you approach your DUI defense, it has no bearing on the penalties that are on the table. Under Section 39:4-50, DUI cases involving impairment and DUI cases involving intoxication receive equal treatment. This means that, as a first-time offender, you are facing penalties including:

  • Fines
  • Insurance surcharges
  • Driver’s license suspension
  • Alcohol education
  • Jail time or community service
  • Mandatory installation of an ignition interlock device

There is one caveat: If your BAC is 0.10 percent or above, you are subject to enhanced penalties under New Jersey law. Again, this is true regardless of your level of impairment.

The severity of the penalties for DUI in New Jersey underscore the importance of hiring an experienced New Jersey DUI defense lawyer regardless of the facts of your case. You are not safe if you refused the breathalyzer (note that you may also be facing a separate charge for your DUI refusal), nor are you safe if the police failed to collect any evidence of actual impairment. You need to take an informed and strategic approach to building your defense, and you need to make sure you are prepared to defend against all of the allegations prosecutors may make against you in court.

Discuss Your Case with an Experienced New Jersey DUI Defense Lawyer

Are you facing a DUI charge in New Jersey? If so, we can help, but it is important that you contact us promptly. To discuss your case with an experienced New Jersey DUI defense lawyer in confidence, call 877-435-6371 or tell us how we can reach you online now.


Over 20 attorneys at HCK have extensive experience in defending DUI cases as they were former assistant prosecutors and/or police officers for a combined total of over 600 years of law enforcement experience. You can find out more about them on our site, and you can call Managing Partner Ron Helmer on his cell phone at 609 685-0665.

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