JOHN
MENZEL, J.D.
and the Law Firm of Moore & Menzel
________________________________________________________________
NEW
JERSEY DWI INFORMATION
Once, the terms
"drunk driving," "driving while intoxicated,"
"driving while impaired," "DWI," "driving
under the influence," and "DUI," were terms
with significant legal distinctions with significantly different
legal consequences. But today in New Jersey, these terms
have come to mean the same thing: a violation of New Jersey
Statute 39:4-50. If you or someone you know faces
a charge under N.J.S. 39:4-50
(or under N.J.S. 39:4-50.2 or
N.J.S. 39:4-50.4a for breath test
refusal), here is some information to help understand what
happens, what's at stake, and what to do when faced with a
motor vehicle stop or arrest for drunk driving in New Jersey.
This
website is offered as a public service to help explain the
laws in New Jersey and was prepared by John Menzel,
J.D., a premiere drunk driving defense attorney
serving clients in courts throughout the entire State of
New Jersey. John Menzel, J.D., and the law
firm of Moore & Menzel defend people charged
with drunk driving and related offenses in New Jersey.
Francis X. Moore, J.D., was a leader in drunk driving defense
for decades. John Menzel, J.D., has concentrated his
practice in drunk driving defense since 1988. In February
2002, they affiliated in the law firm of Moore & Menzel.
Although Francis X. Moore passed away in August 2003, his
legacy continues under the leadership of John Menzel.
John
Menzel, J.D.,
has defended people in thousands of drunk driving cases
in hundreds of municipal courts throughout New Jersey and
criminal cases in Superior Court. He has argued appeals
up to the New Jersey Supreme Court, and appeared in the
Federal District Court and Third Circuit Court of Appeals
on habeas corpus petitions filed for people charged
with drunk driving in New Jersey. A member of several
bar associations devoted to criminal and DUI defense, he
also teaches law at Ocean County College.
To learn more
about New Jersey's DWI laws, click on any of the following
topics:
HOW
THE PROCESS WORKS
q
When and How
to Plead
q
What the State
Must Prove to Convict You
q
What the State
Must Prove to Show a Breath Test Reliability
q
Documents Drunk
Driving Defendants Should See Before Deciding What to Do
q
Documents Breath
Test Refusal Defendants Should See Before Deciding What
to Do
q
Additional
Trial Preparation: When to Hire an Expert
NEW JERSEY DWI PENALTIES
q
Drunk Driving:
First Offense Penalties
q
Drunk Driving:
Second Offense Penalties
q
Drunk Driving:
Third Offense Penalties
q
Breath Test
Refusal: First Offense Penalties
q
Breath Test
Refusal: Second Offense Penalties
q
Breath Test
Refusal: Third Offense Penalties
q
Underage Operation
With a BAC in Excess of 0.01 %
DRUNK
DRIVING ARREST
q
Your Constitutional
Rights
q
Your Statutory
Obligations
q
Do's and Don'ts
When Stopped for Drunk Driving
q
Do's and Don'ts
When Arrested for Drunk Driving
COURTS INFORMATION
q
If You Are
Charged with an Offense
q
The Steps of
Drunk Driving Litigation
NEW
JERSEY DWI STATUTES
_________________________________________
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
When and
How to Plead
The Process
Begins when a police officer makes a motor vehicle stop or investigates an accident
or assists a motorist. This first contact with police
may mature to an arrest if the officer suspects that you,
the motorist, are either under the influence of some substance
or have a blood alcohol content in excess of the legal limit.
This limit is now .08 percent of alcohol in the blood.
Police
Issue a Ticket.
Armed with this suspicion, the police officer can charge
you with drunk driving by issuing a summons and complaint
in the form of a traffic ticket. This summons commands
you to appear in the municipal court of the municipality
in which he or she claims you for a first appearance, called
an arraignment.
First,
Plead Not Guilty.
At arraignment, your plea should almost always be NOT GUILTY.
The judge will also ask if you want to hire a lawyer and,
if so, whether you can afford one. Indigent defendants
can obtain a Form 5A: Application for Public Defendant to
apply for legal representation. Most municipal courts
have these forms available on request. If you use
one, try to keep a copy for your records.
Hire a
Lawyer.
Review
Discovery. Once retained, your lawyer and you should consider changing the
not guilty plea only after reviewing discovery --
i.e., documents and other information received from
the State before trial. After this review:
Decide.
Plead NOT GUILTY
if sentence on a guilty plea will be about the same as the
sentence on a guilty finding after trial or if you are prepared
to accept the maximum sentence if you lose. Plead
GUILTY if serious aggravating factors exist and you have
real risk of imprisonment or other unacceptable consequence
that can be avoided with a guilty plea.
_________________________________________
HOW
THE PROCESS WORKS
q
What the State
Must Prove to Convict You
q
What the State
Must Prove to Show a Breath Test Reliability
q
Documents Drunk
Driving Defendants Should See Before Deciding What to Do
q
Documents Breath
Test Refusal Defendants Should See Before Deciding What
to Do
q
Additional
Trial Preparation: When to Hire an Expert
NEW JERSEY DWI PENALTIES
DRUNK
DRIVING ARREST
COURTS INFORMATION
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
What the
State Must Prove to Convict You
Prerequisites.
Almost all drunk driving charges arise from arrests which
are considered warrantless seizures. Seizures made
without an arrest warrant are presumed to be unreasonable.
Thus, the State must establish that the officer had probable
cause to (a) stop you, and (b) arrest you for drunk driving.
Probable cause is a reasonable basis to act, usually involving
a suspicion that you violated the law. The State must
establish probable cause by a preponderance of the evidence.
Elements
of Drunk Driving.
Once these prerequisites are established, the court can
consider the elements of the offense. To convict you
of drunk driving, the State must prove beyond a reasonable
doubt that you
q
operated or
intended to operate
q
an operable
motor vehicle
q
while either
(a) under the influence of liquor, narcotic, hallucinogenic,
habit-producing drug, or marijuana or (b) with an alcohol
concentration of 0.08 per cent by weight of alcohol in your
blood or breath
Defenses
to Drunk Driving.
Defenses to drunk driving charges focus on the elements.
If the State fails to establish the elements or if you present
evidence that gives rise to a reasonable doubt about the
elements, you can win and the court will find you not
guilty.
Elements
of Breath Test Refusal.
Breath test refusal is a separate offense for which the
court imposes separate punishments in addition to those
for drunk driving. To convict you of breath test refusal,
the State must prove by a preponderance of the evidence
(i.e., more likely than not) that the arresting officer:
q
had probable
cause to believe that you were driving or in actual physical
control of a motor vehicle on the public highways or quasi-public
areas of this state while under the influence of liquor,
narcotic, hallucinogenic, habit-producing drug, or marijuana
q
arrested you
for drunk driving
q
asked you to
submit to a breath test
q
received an
answer that was either negative or conditional
Defenses
to Breath Test Refusal.
Affirmative defenses are defenses that require you to prove
that something prevented you from submitting breath samples.
New Jersey law recognizes few such defenses to breath test
refusal. Affirmative defenses include (a) confusion
about your legal obligation to submit a breath sample (not
confusion caused by intoxication) arising from your misimpression
of those rights or incorrect advice from the police officer,
and (b) a physical inability to give sufficient breath samples
due to certain medical conditions like trauma, emphysema,
or asthma.
_________________________________________
HOW
THE PROCESS WORKS
q
When and How
to Plead
q
What the State
Must Prove to Show a Breath Test Reliability
q
Documents Drunk
Driving Defendants Should See Before Deciding What to Do
q
Documents Breath
Test Refusal Defendants Should See Before Deciding What
to Do
q
Additional
Trial Preparation: When to Hire an Expert
NEW JERSEY DWI PENALTIES
DRUNK
DRIVING ARREST
COURTS INFORMATION
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
What the
State Must Prove to Show Breath Test Reliability
Breath
Tests. Breath
testing is by far the most common way of testing for blood
alcohol content ["BAC"]. The Breathalyzer
is by far the most commonly used machine to test breath
in New Jersey. Before the court can hear what Breathalyzer
test results are, the State must establish certain things:
q
The instrument
was working properly
q
The officer
who operated the machine was certified by the Attorney General
to use it
q
Radio frequency
interference did not affect the machine
q
The test was
given correctly with the testing officer following a special
check list
q
At least two
test were given between six and 15 minutes apart
q
The test results
were within .01 of each other
q
Chemicals in
glass ampoules used in the test were of the proper amount
and mix
The New Jersey
Attorney General has approved a new instrument for breath
testing -- the National Drager Alcotest 7110. Before
the court can hear what Breathalyzer test results are, the
State must establish certain things:
q
The instrument
was working properly
q
The officer
who operated the machine was certified by the Attorney General
to use it
q
The test was
given correctly with the testing officer following a special
check list
q
There is a
printout of the test results
_________________________________________
HOW
THE PROCESS WORKS
q
When and How
to Plead
q
What the State
Must Prove to Convict You
q
Documents Drunk
Driving Defendants Should See Before Deciding What to Do
q
Documents Breath
Test Refusal Defendants Should See Before Deciding What
to Do
q
Additional
Trial Preparation: When to Hire an Expert
NEW JERSEY DWI PENALTIES
DRUNK
DRIVING ARREST
COURTS INFORMATION
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
Documents Drunk Driving Defendants
Should See
Before Deciding What to
Do
If you were
charged with drunk driving, you should get copies of these
documents from your lawyer:
q
Police copies
of the Summons and Complaint
q
Drinking-Driving
Report, including
q
an observations
check-off sheet and
q
a narrative
of investigation
q
DMV Standard
Statement
q
Alcohol Influence
Report, including
q
chemical test
information
q
full identification
of the machine used
q
the type of
machine used
q
the machine's
manufacturer
q
the machine's
model number
q
the time tests
were given
q
sample volumes
(Alcotest only)
q
test results
q
simulator solution
test times, volumes, and results (Alcotest only)
q
air blank test
times and results (Alcotest only)
q
air blank test
results (Breathalyzer only)
q
a breathalyzer
operational checklist
q
Breath Test
Instrument Inspection Certificates, which show results of
periodic inspection of the machine:
q
one dated before
your breath test
q
one dated after
q
others from
the year before your arrest
q
one showing
when this machine was placed in service
q
Breathalyzer
Operator Certification Card for the officer conducting the
breath tests
q
Assay report
for ampoule chemicals
q
State Police
certificate of analysis for breath alcohol simulator solution
q
Documents you
signed, if any
q
Any other police
reports
_________________________________________
HOW
THE PROCESS WORKS
q
When and How
to Plead
q
What the State
Must Prove to Convict You
q
What the State
Must Prove to Show a Breath Test Reliability
q
Documents Breath
Test Refusal Defendants Should See Before Deciding What
to Do
q
Additional
Trial Preparation: When to Hire an Expert
NEW JERSEY DWI PENALTIES
DRUNK
DRIVING ARREST
COURTS INFORMATION
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
Documents Breath Test Refusal Defendants
Should See
Before Deciding What to
Do
If you were
charged with breath test refusal, you should get copies
of these documents from your lawyer:
q
Police copies
of the Summons and Complaint
q
Drinking-Driving
Report, including
q
an observations
check-off sheet
q
a narrative
of investigation
q
DMV Standard
Statement
q
Alcohol Influence
Report, including
q
full identification
of the machine used
q
the type of
machine used
q
the machine's
manufacturer
q
the machine's
model number
q
an indication
about the alleged refusal
q
Breath Test
Instrument Inspection Certificates showing the availability
of a testing device
q
Breathalyzer
Operator Certification Card for the officer available for
breath testing
q
Documents you
signed, if any
q
Any other police
reports
_________________________________________
HOW
THE PROCESS WORKS
q
When and How
to Plead
q
What the State
Must Prove to Convict You
q
What the State
Must Prove to Show a Breath Test Reliability
q
Documents Drunk
Driving Defendants Should See Before Deciding What to Do
q
Additional
Trial Preparation: When to Hire an Expert
NEW JERSEY DWI PENALTIES
DRUNK
DRIVING ARREST
COURTS INFORMATION
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
Additional
Trial Preparation: When to Hire an Expert
Breathalyzer
Defects.
If a defect afflicts the breathalyzer or its operation,
the defense may call an expert witness, often a factory
trained breathalyzer technician formerly certified by the
Attorney General as a Breath Test Coordinator Instructor
with the New Jersey State Police. The New Jersey State
Police opposes defense attempts to call presently certified
Breath Test Coordinator Instructors as experts for the defense.
Medical
Issues.
Consider hiring a medical doctor if you have a health problem
that affects breath test results -- e.g., diabetes,
hypoglycemia, asthma, fever, ulcers, hiatal hernia, and
use of certain medications--or causes you to sway, stagger,
have bloodshot watery eyes and droopy lids, fumble and move
your hands slowly, and show other signs that may be mistaken
for intoxication -- e.g., diabetes, hypoglycemia,
inner ear and eye disorders, neurological deficits, and
allergies.
Other Experts.
Creative lawyers often use other experts, depending on what
may be at issue in a particular case. Consider
q
accident reconstruction
experts
q
engineers
q
surveyors
q
mechanics
q
others
Reciprocal
Discovery.
Other items helpful not only to bolster expert testimony
but also to assist in a factual presentation to the court.
If you or your lawyer want to show such items to the
court, court rules generally require that the State be given
notice and either given copies or a chance to inspect them.
Such items can include
q
photographs
q
tax maps
q
zoning maps
q
satellite images
q
medical records
and x-rays
Investigators.
Investigators are experts who know how to interview witnesses
and find out information from canvassing the scene or preserving
custody of items which other experts may need to examine.
Investigators can help by doing legwork for lawyer and client.
_________________________________________
HOW
THE PROCESS WORKS
q
When and How
to Plead
q
What the State
Must Prove to Convict You
q
What the State
Must Prove to Show a Breath Test Reliability
q
Documents Drunk
Driving Defendants Should See Before Deciding What to Do
q
Documents Breath
Test Refusal Defendants Should See Before Deciding What
to Do
NEW JERSEY DWI PENALTIES
DRUNK
DRIVING ARREST
COURTS INFORMATION
FREE DWI CASE
EVALUATION
ABOUT
JOHN MENZEL, J.D.
DISCLAIMER
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