What You Don’t Know About a DWI Could Cost You in NJ


If you’ve been charged with Driving While Intoxicated (DWI) in New Jersey, what you don’t know about a DWI could cost you in a major way. That’s because NJ DWI laws tend to be complicated and confusing, and there are a number of common fallacies about these types of offenses that can make it difficult for a layperson to defend against DWI charges without a qualified attorney guiding them.

Top Mistaken Beliefs about New Jersey DWI Offenses

When it comes to NJ DWI offenses, knowledge truly is power: the more you know about your DWI charges, the better your chances will be of successfully fighting the DWI charges and avoiding conviction. Whether it’s contesting the charges before trial and getting the case dismissed, or winning the case at trial and persuading the judge to find you not guilty, having a complete and nuanced understanding of the state’s DWI laws will go a long way toward keeping you out of jail and ensuring that you maintain your driver’s license.

The following are some of the most frequent misunderstandings about DWI offenses in New Jersey.

Fallacy #1: You can only be charged with a DWI if you were actually driving the car when police found you.

Driving under the influence charges typically involve a person who is accused of driving a car on the road, but this is not always the case. In fact, it is not uncommon for a person to be charged with a DWI when police find them sleeping or otherwise passed out behind the wheel of a car that is parked on the side of the road, in a parking lot, or even in front of their own home. The deciding factor in a DWI charge is whether it can reasonably be inferred that the intoxicated individual was operating the vehicle prior to passing out. For example, the prosecutor might point to the location of your car keys in the vehicle ignition as proof that you either operated the vehicle or intended to operate the vehicle.

Fallacy #2: Breathalyzer test results can always be trusted.

Although the state often relies on breath test results to prove their case, the reality is that breathalyzers are sometimes inaccurate and can register faulty results. In New Jersey, the breath testing device used by law enforcement is the Drager Alcotest. Previously, the NJ Supreme Court determined that improper calibration of the breathalyzer may have resulted in thousands of tainted results in some DWI cases. This ruling showed the significant impact that the absence of police officer certification, or a lack of training, could have on breathalyzer test results in DWI cases. Additionally, there are several factors that can influence the results of a breath test, including the motorist’s body temperature and whether they ingested medication or used a breath freshener before taking the test.

Fallacy #3: Field sobriety tests are always strong evidence in a DWI case.

While breath test results, as well as chemical blood test results, can be used by the prosecution to prove intoxication in a DWI case, field sobriety tests can also be coupled with the officer’s observations and driving behavior to prosecute a DWI defendant in the absence of a blood alcohol concentration reading. Often though, field sobriety tests such as the horizontal gaze nystagmus test are just not reliable enough to prove beyond a reasonable doubt that a driver was drunk. If you were asked to take a field sobriety test after being pulled over on suspicion of drunk driving, the test by itself can be used to establish probable cause that you were intoxicated. Once police have probable cause, they can take you into custody and then conduct additional testing – likely a breathalyzer test – in an attempt to prove that you are intoxicated. Knowing the things that can go wrong with field sobriety testing can be a great way to undermine the validity of the test results, whether the police officer gave the wrong instructions or you have an injury or medical condition that could have affected the results. Beyond that, police cannot actually require you to take a field sobriety test; they can merely ask you to take the test.

Fallacy #4: You should refuse to take a breath test if you want to avoid being charged with a DWI.

One of the biggest mistakes that motorists make is refusing to take a breath test when asked to do so by police because they mistakenly believe that “DWI charges can only be brought against someone who fails a breathalyzer test.” The truth is that authorities can, and often do, file DWI charges solely on the basis of the police officer’s observations. For example, the officer may have detected the odor of alcohol on your breath, as well as observing bloodshot eyes, a flushed complexion, and slurred speech when you attempted to respond to questions. These observations may be sufficient as proof of intoxication if and when your DWI case proceeds to trial. Moreover, if you refuse to take a breath test, you should also expect to face charges for Breath Test Refusal on top of the DWI charges. That’s because all motorists in NJ automatically consent to take a breath test by virtue of having a license and operating a motor vehicle on state roadways.

Fallacy #5: You have the right to a jury trial in your DWI case.

Although most states allow defendants in DWI cases to choose to have their cases heard by either a judge or a jury, New Jersey only allows bench trials for DWI charges. This is because DWI offenses are technically classified as traffic violations, which means that they must be handled in the local municipal court where there are no juries. When the New Jersey Supreme Court considered whether the severe penalties imposed in DWI cases – which can include significant jail time and driver’s license suspension – warranted a jury trial option for defendants, the court concluded that there is no right to a DWI jury trial. This means that your DWI case will be decided by a judge.

Fallacy #6: You will still be allowed to drive to and from work while your license is suspended for a DWI.

While some states offer hardship licenses to motorists whose licenses are suspended so that those motorists can continue to get to work and earn a living, New Jersey does not have these types of provisional licenses. This means that if you are convicted of drunk driving in NJ and the judge suspends your license, you will not be able to operate a car until your driving privileges have been restored. Moreover, your license will be suspended if you are a repeat offender because second-time DWI’s and third or subsequent DWI offenses carry mandatory license suspension penalties.

Fallacy #7: You can expunge a DWI conviction.

The good news is that most criminal convictions can eventually be removed from your record through a process known as expungement. The bad news is that DWI convictions are not eligible for the expungement process because DUI is classified as a traffic offense, not a criminal offense. This means that if you are convicted of a DWI, or if you plead guilty to a DWI, the record of the conviction or guilty plea will remain on your driving record forever.

Fallacy #8: You should represent yourself in your DWI case.

You do have the right to handle your own defense in court and contest your DWI charges without the assistance of legal counsel, but you should be aware that there are profound risks to representing yourself. The reality is that New Jersey DWI laws are extremely complex. Likewise, the stakes in your drunk driving case could be very high because NJ also imposes some of the toughest DWI penalties in the entire country. If you have been charged with Driving While Intoxicated (DWI) or Driving Under the Influence (DUI), the best move you can make is to have an experienced DWI defense attorney on your side and representing you throughout the legal process. Depending on the circumstances, a knowledgeable DUI lawyer may be able to get your charges dismissed, contest the reliability of key evidence that the state needs to get a conviction in your case, or otherwise challenge your DWI charge so that you avoid the most severe penalties.

At William Proetta Criminal Law, our attorneys have successfully challenged DWI cases and related charges in Middlesex County, New Jersey for over a decade. With advanced training and certifications in the police testing protocols that will likely be used to prosecute your DWI charge, we will look for any and all ways to show mistakes were made that could provide a means for getting your charges dismissed. Call (732) 659-9600 to discuss your DWI arrest and make sure you know the real facts about the charges you are facing.

With more than a decade of experience defending clients against criminal charges, founding partner William A. Proetta has successfully handled and tried thousands of cases, from DWI to murder. As a New Jersey native, he has focused his career on helping people in the area where he grew up, serving Middlesex, Ocean, Hudson, and Union counties.