In order to be convicted for driving while intoxicated, the prosecution must be able to show that a person was driving a vehicle and his/her control of that vehicle was impaired. Impairment means the person was not able to stop in time, react appropriately, pass, or maneuver a vehicle – in the same way that a person who was sober would respond to traffic conditions.
The prosecution can prove someone was driving while intoxicated without the use of any chemical tests or even without the use of any field sobriety tests. It’s up to a jury to decide if the driver was impaired.
The police normally use chemical tests, such as breath tests, to strengthen their argument to the jury that the driver was impaired.
The prosecution also uses blood alcohol concentration tests because it’s easier to prove guilt. Any driver whose BAC test result is above a preset limit is guilty automatically. That’s what per se means – automatically, by virtue of, or as a matter of law. In DWI cases, nationwide, a .08 BAC means the person is guilty of drunk driving per se. The way to defeat the per se charge is to demonstrate that either the police did not have the legal right to conduct the chemical test or that the test was invalid.
Our New Jersey DWI lawyers have successfully brought such challenges in a number of cases involving chemical impairment.
DWI penalty details
First-time offenders who are found guilty per se, or because a jury or judge was convinced the driver drove drunk, will:
The jail time length and the number of fines and penalties increase with subsequent convictions in a 10-year period.
The possible jail time also increases if the driver is charged with a DWI/DUI in a school zone.
Case Study
DWI Dismissal Of BAC
The DWI attorneys at Aiello, Harris, Abate, Law Group PC recently appeared in Chatham Township Municipal Court. The defendant was charged with DWI (drunk driving) in violation of N.J.S.A. 39:4-50, reckless driving in violation of N.J.S.A. 39:4-96, failure to maintain lane in violation of N.J.S.A. 39:4-88a, possession of an open alcohol container in violation of N.J.S.A. 39:4-51B, and maintenance of lamps in violation of N.J.S.A. 39:3-66.
Jail times for school zone drunk driving or drugged driving are:
1stoffense: 1-2 years instead of 7-12 months.
2nd offense: 4 years instead of 2 years
3rd offense: 20 years instead of 10 years.
The financial consequences for a school zone DWI/DUI are double those for non-school zone drunk or drugged driving.
A per se finding that the driver’s BAC was .10 or more will result in:
Jail time for up to 30 days
Fines up to $500 plus additional penalties
Loss of driving privileges for at least seven months and possibly a year
They will also have the same insurance surcharge, IDRC requirements, and possible IID and community service requirements as .08 cases.
If the defendant’s BAC is .15 or more, the driver will likely be required to use an IID device for six to twelve months once their driver’s license is restored.
Additional Penalties in DWI Cases
New Jersey drivers give their implied consent to have a breath or blood test taken if a police officer has reasonable suspicion to believe they were driving while intoxicated. The refusal to take the test can be used in court, provided the police officer advised the driver what would happen if he/she refused the chemical test. Most juries will assume that the only reason for the refusal was that the driver was drunk.
Drivers who refuse a breath or blood test to measure their blood alcohol content will also receive additional penalties, including more extended driving suspension periods, fines, and mandatory completion of 12 hours of Intoxicated Driver Resource Center (IDRC) education.
Call us today at (908) 561-5577 or contact us. Your initial consultation will take place over the phone, and you can schedule an appointment at one of our office locations across New Jersey.
Contact our New Jersey Per Se Violation Lawyers
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