License Hearings In New Jersey After DWI Charges

---

Does New Jersey Have Any Sort of DMV or MVC Hearings Once Someone Has Been Charged with DWI as It Relates to a License Suspension?

New Jersey does not have Motor Vehicle Commission [“MVC”] hearings related to DWI and license suspensions, except when a New Jersey motorist is convicted of DWI outside of New Jersey. In New Jersey, a DWI and a refusal are treated as separate offenses in the municipal court. In fact, if one is convicted of both the DWI and the refusal, the courts impose separate punishments. For first offenders, the judge has the discretion to run those punishments consecutively or concurrently, but for second and third offenders, it is mandated by statute that those penalties run consecutively.

The only time administrative action becomes necessary is in the case of a New Jersey licensed driver who is convicted of either a DWI or a breath test refusal in court or administratively in another state and that state reports the conviction or administrative action to MVC. MVC would send the driver a proposed suspension, and the driver would be able to request a hearing. Depending on the proposed suspension, reductions may be possible but would need to be addressed on a case-by-case basis.

Does Everyone Who Is Charged with DWI in New Jersey Face the Same Series of Events or Circumstances When It Comes to Their License, or Are There Other Contributing Factors at Play?

Penalties in New Jersey are stratified depending upon whether one is a first, second, or third offender. The penalties for a first offender are further stratified depending on the breath or blood test result. For example, a first offender who is charged after December 1, 2019 would face an indefinite revocation by the court, This indefinite revocation would end when the offender does two things: (a) have an alcohol ignition interlock device installed on whatever vehicle they principally operate, and (b) go to MVC to get a physical driver’s license with the alcohol ignition interlock device [“AIID”] requirement imprint on the license. At that point, the period of AIID restriction would begin.

If there was no reading or if the reading was less than 0.10, then that period would last for three months. If the breath test result or blood test result was between 0.10 and 0.14, then the interlock period would last for seven to 12 months. If the breath test or blood test result was 0.15 or higher, then the individual would be entirely barred from driving for a period of four to six months after the indefinite revocation. After that four to six-month period, they would be restricted to operating only those vehicles equipped to an AIID for between 9 and 15 months.

For second offenders, there is a one to two-year period of driving privilege forfeiture followed by two to four years with an AIID. Third offenders face an eight-year revocation followed by two to four years with an AIID. There are, of course, other penalties: fines, and mandatory attendance at the Intoxicated Driver Resource Center [“IDRC”]. There may also be a jail sentence of between two and 90 days for a second offender and, for a third or subsequent offender, a mandatory jail sentence of 180 days, with a possible reduction up to 90 days for each day spent in an IDRC-approved in-patient alcohol rehabilitation facility. Administratively, MVC will assess a series of surcharges and fees, which altogether will total a little more than $4,000, most of which would be payable in installments over a three-year period.

What Else Is Important for Someone who Is Facing DWI Charges to Know when It Comes to License Suspension, Especially During this Time when the Courts Are Not Necessarily Meeting in Person?

At present, I have been adjourning all DWI and breath test refusal adjudications until after MVC opens, which is currently projected to be around July 7 of this year, although that remains to be seen because it has been scheduled and postponed three times already. This is important because, if the MVC is not open, it is not possible to get the driver license with the imprint on it. Many people who were serving suspensions and interlock restrictions prior to the advent of COVID-19 are having problems getting an official restoration logged in the MVC computer and the license issued. Police activity is down and those people who have been stopped, having satisfied their conditions, have generally been treated courteously. For those who are charged and prosecuted, COVID-19 may become a defense to justify their driving after having served their sentence.

What Are Some of the Most Common Sources of Confusion for Clients Regarding DWI License Restrictions?

Right now, much of the confusion revolves around the closure of MVC. I recommend that essential workers who must drive carry with them their order of conviction showing the length of the revocation, and their AIID installation certificate. These workers should understand that there is a small risk that they will be charged with something, but it would probably be defensible.

Generally speaking, traffic enforcement has been way down. I think cops want to socially distance as much as most ordinary people do, so relatively minor traffic offenses are down, as are DWIs. For example, in the month of April, there were only 58 DWIs written throughout all of New Jersey—the most densely populated state in the country that is home to almost nine million people. This is probably about 2-3 percent of the normal total.

What Is the New Jersey Implied Consent Law, and What Happens if Someone Refuses a Breath or Blood Test?

To prove a breath test refusal, the state has to establish that there was probable cause to arrest the person for DWI, that the actual arrest was for DWI, that the person was advised of their rights and obligations concerning the submission of breath samples. This is done through the testimony of a police officer who will state under oath that he read something called the standard statement and that the defendant said, “No,” or did something else which indicated a refusal to submit samples.

A breath test refusal charge is generally pretty easy for the State to prove, but there are defenses. One potential defense is physical inability to submit a sample. Indeed, our Supreme Court has recognized as a general proposition that women over the age of 60 may not be able to submit the minimum breath sample of 1.5 liters that the Alco-test 7110 requires. This does not mean that a 60-year-old woman would be out of the woods; it just means that there would be a potential defense, unless the volume registered by the instrument was between 1.2 and 1.5 liters, in which case it would provide an absolute defense. There are also people who physiologically cannot submit a sample, such as someone who has asthma or other respiratory conditions.

Another defense is called “confusion.” This refers to a very specific kind of confusion between the person’s misunderstanding that the Fifth Amendment right to remain silent to withhold testimonial evidence applies to the obligation to submit physical tangible evidence like a breath sample. If the judge finds that this mistake was made in good faith, then that can be sufficient to raise reasonable doubt and lead to an acquittal. Politically, the practical problem with a confusion defense is that it requires the judge to find what is in the defendant’s mind at the time the breath sample was submitted, and of course, there is no way to see what’s in someone’s mind except by the surrounding circumstances. In addition, judges in New Jersey are appointed for three-year terms and get reappointed at the pleasure of whoever is running the town at the time of reappointment. As a result, judges tend to favor convictions to avoid complaints and thereby make their reappointment more likely. Although it is theoretically possible to raise confusion as a defense, it is usually pretty difficult to prevail. Over the course of my 35-year career, I have probably only seen about a half a dozen cases where the defendant prevailed with this defense.

Other defenses include lack of probable cause to arrest the person. Probable cause is a concept that basically deals with whether or not the officer had enough information at the time he or she made the arrest to justify continuing the DWI investigation. This is not a question of whether the person was driving while under the influence, but merely whether or not there was enough information for the officer to reasonably suspect that they were.

If probable cause is found, then the question becomes whether or not the person was arrested for DWI. On occasion, an arrest will actually be divorced from the DWI. For example, I recall a case where the defendant was wanted through an all-points bulletin. He was suspected of an assault. The information was broadcasted. Police ran the license plate and determined where he lived, then staked out the Garden State Parkway exit, and immediately pulled him over when they identified the vehicle. The cops came out with guns drawn and immediately arrested him on suspicion of the assault. While in custody, he was asked to submit a breath sample. Since the arrest was for the assault and not for the DWI, he was found not guilty of the DWI and breath test refusal charges.

Other errors involve the standard statement. For example, if the person who has been asked to submit that statement is not fluent in English, there may be some communication issues. If the officers are unable to communicate with that person in a language that they understand, that can be a defense to the refusal charge.

As previously mentioned, a refusal is dealt with by the court—not by MVC. The burden of proof to prove a refusal is beyond a reasonable doubt. Outside of New Jersey where refusals are dealt with administratively, the burden of proof is usually just a preponderance of the evidence. Given this difference in evidentiary burdens, a driver may challenge New Jersey administrative action to revoke the driver’s license based on the out-of-state refusal.

For more information on DUI Defense and refusal to submit breath samples, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.