New Jersey DWI FAQs

Courtesy of NJ Lawyer, Greggory M. Marootian, Esq.


Question: “Can past convictions be over turned if the breath test was done improperly.”

Answer: Convictions can be attacked by going back into the convicting court and making an application to either vacate the guilty plea or challenge the trial. There are time limits in filing these applications (generally five years) – you should speak with an attorney and provide all of the facts to him/her to better assess your rights.


Question: “I was arrested for dwi after a fight at my house with my girlfreinds daughters boy friend and i was injured during this fight was rendered unconcious at this time i had been struct in the face with a glass candle and my nose was broken i was bleeding severley and had made it out of the house to my truck got in and tried to get to the hospital i had dialed 911 before this all started and got out of the house due to my girlfreinds violent temper when she drank i got in the truck and blacked out made a left turn and awoke going head on for a police car pulled over and waited for the officer to return at which time he struck me knocking me to the ground and hand cuffing me later to find that my girlfreind had a warrant taken out on me for domestic violence and assault later on i was taken to the hospital and then to jail this happened in 11/2001 can i still appeal the decision of this judge and can i have the charge dismissed.”

Answer: A decision of a Municipal Court can be appealed. Appeals must be taken within twenty days of the final judgment. There are some limited exceptions such as where no notice was given regarding the appeal deadline.

There is also a procedure known as post conviction relief. Those applications must be filed in the Municipal Court within five years. The Court considers constitutional defects in your trial or plea.


Question: “I will be going on the ARD program in PA….loosing my license for 30 days. I know I cannot drive in NJ for the 30 days. My question is will NJ take my license away for more than 30 days. How long does it usually take for me to get notice for the 1000.00 per year surcharge on my insurance? Will my expungement take place as soon as I complete the ARD program and pay all fines, which I plan to do as soon as I am put on the program. I think my probation time is going to be 3-6 months.”

Answer: First, I am not a PA Attorney – I am licensed in NJ only. In any event, NJ DMV will take action against you upon a conviction. You should check the parameters of the ARD admittance – if there was not a conviction, NJ should not take action. If they do try and take action, it may be contested.


Question: “What are the penalties for a third conviction if the first conviction took place more than 10 years ago. Did the law on this recently change. If you were arrested in October of 2001 and the laws changed in January 2003 and you do not go to trial until April of 2003 are you subject to new provisions and penalties of the law. ”

Answer: The law will look at the gap between the 2nd and third offense – the time of the first is not relevant. If the gap between the second and third is less than a year, the law treats the offense as a third. The recent law on the issue merely was a pronouncement of what the statutory law has been.


Question: “Can the state of N.J. charge an out of state driver a surcharge for a D.U.I. If that driver had in his possession a valid driver license from another state. And produced said license to the police at the time of their arrest. please reply a.s.a.p. ”

Answer: Yes.


Question: “Police found me sleeping in my car wit the engine on and with a half bottle of liquor on the rear seat,that happened in a parking lot.two tickets were given to me one 39:4-50 and 39:4-51a.

Answer: OK – I am not sure what the question is. However, you are charged with DWI and consumption in a motor vehicle. Like all charges, the State has the burden of proof beyond a reasonable doubt. If you were sick, you would go to a doctor – you have a legal problem – you should hire an attorney.


Question: “I will be going on the ARD program for dui in PA and loosing my drivers license for 30 days I am a NJ licensed driver can I still drive in NJ? ”

Answer: No – if you are suspended out of state, NJ law regards you and being suspended here.


Question: “In New Jersey will they allow a 1st time offender to have driving privlidges during working hours?”

Answer: Common Question – the answer is, unfortunately, No.


Question: “I was in a pretty serious accident 2 weeks ago. My passenger and I are ok, we were taken to the hospital, she was x-rayed, I refused treatment. A trooper came into the hospital and said he found opened bottles in the vehicle and said I could either have blood taken there, or go with him to have a breathalizer test. I was not arrested, they took blood, but I don’t remember signing any forms for the bloodwork. I had a DWI in NY state in 1994, would this be considered my 1st offence because it’s in another state? I received 5 tickets for this, I was just hoping to get your input, thank you.”

Answer: The prior New York DWI in 1994 (as opposed to a DWAI) is generally considered a prior for sentencing purposes. I am always reluctant to advise people on this board to seek out counsel for fear that it will be viewed as my trying to generate a new client. However, my best advice for you is to retain counsel. You have a serious charge and exposure (given the accident and your NY prior). Further, blood draw DWI cases require a very detailed and thorough analysis by an experienced and competent DWI Defense Lawyer.


Question: “If only one of my breathalyzer tests registered because of a preexisting asthmatic condition, am I still entitled to another test? What will the court do with one registered reading?”

Answer: The one reading, standing alone, is not evidential. The law requires two readings taken within 15 minutes of one another, with the lower of the two being used for proof purposes.