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Drunk Driving: How to Avoid a DUI/DWI in New Jersey

New Jersey has some of the steepest drunk driving penalties in the country. With thousands of dollars in financial penalties and up to 30 days in jail for a standard first-time offense, a DUI/DWI charge is not to be taken lightly.

Key Defense Strategies in DUI/DWI Cases in New Jersey

While each case is unique, in many cases, individuals facing DUI/DWI charges will have several defenses available. Here are some of the top ways to avoid a drunk driving conviction in New Jersey:

1. Prove You Were Not Impaired

We say “prove,” but really all you need is to raise enough questions about the prosecution’s proof to cast a reasonable doubt in the mind of the judge (all DUI/DWI cases in New Jersey involve bench trials—you do not have a right to trial by jury). If your blood alcohol content (BAC) test results are the prosecution’s evidence, was the Alcotest calibrated? Was your test administered properly? Did your BAC rise after you got pulled over? These are just a few of the types of issues your lawyer will investigate in order to challenge the prosecution’s evidence.

2. Have the Prosecution’s Evidence Suppressed  

If the prosecution’s evidence is strong, do you have grounds to have it suppressed (excluded) from your case? If the police stopped you without reasonable suspicion, arrested you without probable cause or otherwise violated your Constitutional rights, any evidence they collected (such as Alcotest results or self-incriminating statements) may be inadmissible in your trial.

3. Present Evidence of a False Positive BAC Test Result

Research has shown that several non-alcoholic substances can generate false positive BAC test results. There are various things that may invalidate a BAC test, such as certain types of dental work, mouth jewelry, and RFI-emitting devices.

4. Plead to a Lesser Charge

If there is a reasonable chance that you could face a conviction at trial, your best option may be to plead to a different charge. While you cannot plea bargain a DUI/DWI case in New Jersey, if the State’s case isn’t bulletproof, the prosecutor may dismiss the DUI and  allow you to plead to a different charge with less severe consequences. Note, however, that any such resolution would be subject to court approval.

5. Make Sure You Have a Sober Ride Home

Of course, the best way to avoid a DUI/DWI is to avoid getting pulled over. If you are planning to go out drinking, make sure you have a sober ride home. This could be a designated driver, a rideshare service (such as Uber or Lyft), or another safe ride alternative.


New Jersey’s DUI/DWI laws impose steep penalties for driving under the influence. These penalties increase for repeat offenders, and the law contains special provisions for commercial drivers, drivers who are under the age of 21, and drivers who fail to comply with the state’s “implied consent” requirements.

One of the most important aspects of New Jersey law is that DUI/DWI is not considered a crime. Instead, in New Jersey, a DUI/DWI is a “traffic offense.” While this may seem like a good thing, the fact that a DUI/DWI is a traffic offense means that: (i) you are not entitled to a trial by jury, and (ii) DUI/DWI convictions are not eligible for expungement.

DUI vs. DWI Differences

While some states’ laws differentiate between driving under the influence (DUI) and driving while intoxicated (DWI), in New Jersey all drunk driving violations are lumped into a single offense. Under Section 39:4-50(a) of the New Jersey Motor Vehicle Code, prosecutors can pursue DUI/DWI charges against:

“[A] person who operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood.”

The law describes this offense as “driving while intoxicated.” In other states, however, operating a vehicle “under the influence of intoxicating liquor” (which applies regardless of BAC), is commonly referred to a DUI, while driving with a BAC of 0.08 percent or higher is classified as DWI.

Although New Jersey does not have separate offenses for DUI and DWI, the distinction is still important. The fact that Section 39:4-50(a) of the New Jersey Motor Vehicle Code covers DUI and DWI means that you do not need to blow above 0.08 to face a drunk driving conviction. If there is other evidence of impairment – for example if the arresting officer observed you weaving in your lane or if you “failed” the field sobriety tests – it is possible that you could be convicted under Section 39:4-50(a) even if you refused the Alcotest or your BAC test results are deemed inadmissible in court. Our lawyers are skilled at challenging both aspects of DUI/DWI cases in New Jersey, and we can use the defense strategies discussed above (among others) to protect you against a conviction or mitigate the consequences of your arrest to the greatest extent possible.

BAC Limits

Section 39:4-50(a) of the New Jersey Motor Vehicle Code establishes the state’s BAC limit of 0.08 percent. While this is the standard that applies to most drivers with regard to establishing culpability for DUI/DWI, there are actually five different BAC limits under New Jersey law:

  • BAC Limit of 0.08 Percent – Driving with a BAC of 0.08 percent or above establishes culpability for DUI/DWI in New Jersey regardless of your actual level of driving impairment.
  • BAC Limit of 0.10 Percent – If your BAC is 0.10 percent or above, you can face enhanced penalties in your DUI/DWI case. This includes additional fines and a longer driver’s license suspension.
  • BAC Limit of 0.15 Percent – If your BAC is 0.15 percent or above, you can be required to install an ignition interlock device in each of your vehicles for a period of months or years once your driving privileges are restored.
  • BAC Limit of 0.04 Percent – If you hold a commercial driver’s license (CDL), you can be arrested and charged with DUI/DWI if you have a BAC of 0.04 percent or above while operating a commercial vehicle.
  • BAC Limit of 0.01 Percent – Under New Jersey’s “zero tolerance” law, drivers under the age of 21 can be charged with DUI/DWI if they have any alcohol in their system, even if their BAC registers at just 0.01 percent.

Breathalyzer Rules

New Jersey’s breathalyzer rules are found in the state’s “implied consent” law. Under this law, all drivers are required to submit to a breathalyzer test if they get pulled over for DUI/DWI by virtue of the “implied consent” they give by making use of the state’s public roads. As stated in Section 39:4-50.2 of the New Jersey Motor Vehicle Code:

“Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in [New Jersey] shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made . . . at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle [while intoxicated].”

However, Section 39:4-50.2 does not just establish rules for drivers. It also establishes rules for the police officers who administer breathalyzer tests (using the Alcotest device) in New Jersey. These rules include:

  • In order to administer the Alcotest, the officer must have “reasonable grounds to believe” that a driver is under the influence of alcohol.
  • The officer must inform the driver of his or her rights to (i) obtain a copy of the breathalyzer test results, and (ii) obtain a second BAC test from “a person or physician of his [or her] own selection.”
  • The officer may not forcibly administer the breathalyzer against a driver’s physical resistance.
  • If a driver refuses the breathalyzer, the officer must inform the driver of the consequences of refusing to submit to a breath test.

If the police officer who arrested you for DUI/DWI violated any of these rules during your traffic stop in New Jersey, our lawyers may be able to use the violation to keep your Alcotest results out of your case.

DUI/DWI Penalties

In New Jersey, the potential penalties in a DUI/DWI case vary depending upon the specific facts and circumstances involved. Factors that can affect the penalties that are on the table include:

  • Whether you have a prior DUI/DWI conviction (or multiple prior convictions) from the past 10 years;
  • Whether your BAC was above 0.10 percent or 0.15 percent;
  • Whether you hold a CDL or are under age 21;
  • Whether there were minors in your vehicle;
  • Whether you were pulled over for DUI/DWI in a school zone; and,
  • Whether you caused an accident.

To learn about the penalties that are on the table in your case, you can read:


Fines are among the penalties for DUI in New Jersey. When you engage our attorneys to represent you, in addition to fighting to help you avoid jail time, loss of driving privileges and other penalties, we will also seek to minimize your financial liability as much as possible. Some of the potential fines in New Jersey DUI cases include:

  • $250 to $400 for a first-time offense with a BAC between 0.08 and 0.10 percent.
  • $300 to $500 for a first-time offense with a BAC of 0.10 percent or above.
  • $500 to $1,000 for a second DUI offense within 10 years.
  • $1,000 for a third or subsequent DUI offense within 10 years.

Guidelines on Avoiding DUI/DWI Arrest

With these penalties in mind, what can drivers in New Jersey do to avoid a DUI/DWI arrest? While it simply may not be possible to avoid getting pulled over in some cases, steps drivers can take to mitigate their risk of a DUI/DWI arrest include:

  • Know the risks of drunk driving. If you know the safety risks you present to yourself and others, you are far less likely to drink and drive.
  • Know the penalties for DUI/DWI. With the potential for fines, jail time and other penalties, a DUI/DWI conviction can cost you in many different ways.
  • Know the practical consequences of a DUI/DWI. Beyond the statutory penalties for DUI/DWI, if you get convicted, you can lose your job, get kicked out of school and face other life-altering consequences.
  • Know your rights and obligations. If you get pulled over, knowing your rights and obligations can help you avoid mistakes that could lead to an arrest.
  • Don’t drink and drive. Once again, the single best way to protect yourself (and others) is to never drink and drive.

What to Do If You Are Pulled Over

What are your obligations if you get pulled over? What mistakes can increase your chances of a DWI arrest? Our New Jersey DWI lawyers recommend:

  • Stay in Your Vehicle. When you get pulled over, stay in your vehicle with your hands on the wheel until instructed otherwise by the officer who stopped you.
  • Remain calm. It is normal to be nervous, or even scared. But, to avoid mistakes or raising suspicion unnecessarily, it is important to try to remain calm.
  • Be Polite. Being hostile or antagonistic is one of the surest ways to increase your chances of a DWI arrest. Be polite, answer the officer’s basic questions and do not raise your voice under any circumstances.
  • Take the Breathalyzer. You are required to submit to a breath test under New Jersey law; and, if you are asked to submit to the Alcotest improperly, your test results should be deemed inadmissible in court.

Are You Facing DUI/DWI Charges in New Jersey? Call Us Now for a Free Consultation

A drunk driving arrest does not have to mean a DUI/DWI conviction. If you are facing charges in New Jersey, we encourage you to contact us promptly for a free, no-obligation consultation. To learn more about your rights and the defenses you may have available, call Helmer, Conley & Kasselman, P.A. at 877-435-6371 or request an appointment online today.

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