Courts often perceive BAC evidence as reliable because it is a direct measurement of alcohol in a person’s breath. Without BAC evidence, the state must rely on officer testimony. For example, an officer might testify that they saw a car driving erratically, and that the driver slurred their speech when the officer questioned them. The law presumes a person with BAC of at least 0.08 percent is too impaired to drive safely or legally. This all depends on accurate measurements, though.

New Jersey police used the Alcotest 7110 for many years. A person must blow into a tube to provide a breath sample. The device uses chemical reactions to measure the amount of alcohol in the sample. From this, it estimates the amount of alcohol in the person’s bloodstream. If the device does not have the necessary chemicals in the right amounts and proportions, it will not provide accurate results.

We were involved in a case that led to a 2008 ruling from the New Jersey Supreme Court, State v. Chun. This decision established procedures for calibrating Alcotest devices. Police departments must keep records showing when each device last received maintenance. These reports are part of any DWI case that relies on Alcotest BAC results.

The Chun decision specifically deals with the Alcotest 7110. In recent years, most New Jersey counties have switched to the newer Alcotest 9510. According to information from the state police, as of 2025 only Bergen, Essex, and Camden Counties still use the Alcotest 7110. The procedures established in Chun still apply to the Alcotest 9510, but it is a new device that may present new problems.

In 2023, a DWI defendant challenged the reliability of Alcotest 9510 results. The New Jersey Supreme Court issued a stay on certain pending cases that involved these devices. After two years of litigation, the defendant asked to withdraw her challenge to the Alcotest 9510’s scientific accuracy. The court lifted the stay in December 2025.

The court’s order does not find that the Alcotest 9510 is accurate. The device is still open to legal challenges. The requirements of Chun remain in effect. DWI defendants have a right to information about the device used in their case. They can challenge the BAC results if the maintenance was inadequate or the records are flawed.

New Jersey police and courts take DWI very seriously. The legal process and court system can be complicated and confusing. An experienced and skilled DWI lawyer can help you understand your rights and advocate for you with prosecutors and the judge. Evan Levow has dedicated 100% of his law practice to defending people facing New Jersey DWI charges. Please contact us today, online or at (877) 593-1717, to schedule a free and confidential consultation with a member of our team to see how we can help you.

New Jersey DWI Law

New Jersey defines DWI as operating a vehicle while impaired by alcohol or drugs. Police and prosecutors can prove that you were impaired in two ways:
– You had blood alcohol content (BAC) of 0.08 percent or more; or
– You displayed other signs of intoxication by alcohol or drugs.
Police usually use breath testing to establish a person’s BAC. The second method of proving DWI requires police officers to observe you and testify about what they saw. Asking you to get out of the vehicle lets them make more observations about your appearance and behavior.

Traffic Stops and Requests to Step Out of the Vehicle

The U.S. Supreme Court determined that police can briefly stop a vehicle based on reasonable suspicion of an offense in Terry v. Ohio in 1968. Once the vehicle has stopped, they can observe how the driver behaves and anything that is in view inside the car. If an officer smells alcohol, sees an open container in the vehicle, or notices other signs of impairment, they can continue a DWI investigation.

A 1977 Supreme Court decision, Pennsylvania v. Mims, held that police can order a person to exit their vehicle for safety reasons. If an officer reasonably suspects that the person has committed an offense, they may investigate.

What Police Officers Look for When Someone Steps Out of Their Vehicle

Once an officer has told you to get out of your vehicle, they are observing everything you do, including:
– How you move and stand;
– Whether you slur your speech or trip over words;
– Whether you can keep your attention on the officer; and
– Whether you smell like alcohol or show other signs of impairment.
The officer might ask you to perform field sobriety tests, or they might just ask questions to see how you react. Their observations during this time are often a key part of their testimony in a DWI case.

What You Can Do to Protect Your Legal Rights

You cannot refuse breath testing under New Jersey law. The Mims decision means you cannot refuse to exit the vehicle without penalty. You can protect your rights in other ways, though:
– Do not say too much: Once you are out of the vehicle, it is unlikely that you can talk your way out of a ticket or an arrest. It is usually better to keep your answers as brief as possible.
– Know your rights: You can refuse field sobriety tests. You can invoke your Fifth Amendment right to remain silent.
– Ask for a lawyer: You have the right to speak to an attorney when the police have detained you. Take advantage of that right as soon as possible.

DWI is a serious offense in New Jersey. An arrest or conviction can have a significant impact on your life. A knowledgeable and experienced DWI attorney can guide you through the legal process and advocate for your rights. Evan Levow has dedicated 100% of his law practice to DWI defense. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our team.

What Is an Ignition Interlock Device?

An IID is a device that attaches to a motor vehicle’s steering column. It is essentially a breathalyzer that prevents the vehicle from starting if the driver’s BAC is over a certain amount. For people with DWI convictions, the BAC threshold is less than the “legal limit” of 0.08 percent.

Do DWIs Increase During the Holidays?

According to the National Highway Traffic Safety Administration (NHTSA), the period from Thanksgiving to New Year’s Day often sees an increase in DWI across the country. It bases this on the rate of fatal accidents that involve intoxication.

“Lookback Period” for New Jersey DWI Charges

Some states look at the total number of prior DWI convictions over a person’s lifetime when determining the penalty for a new conviction. New Jersey courts mainly look at the ten years before the current offense. For example, if a person is convicted for DWI that occurred on June 1, 2025, the court will look at how many DWI convictions they have in total, and whether any occurred after June 1, 2015:
– One prior DWI conviction from more than ten years ago: The court will treat the current case as a first offense.
– Two DWI convictions from over a decade ago: The court will consider the current case to be their second offense.

The statute does not specifically describe what happens if a person has three or more DWI convictions outside of the ten-year period. A court might view a fourth DWI as a third offense under those circumstances, but it would not make much difference for the penalties.

Enhanced Penalties for a Fourth DWI Conviction

The DWI statute provides enhanced penalties for a fourth DWI. Courts have discretion over some penalties, but not others.

Jail Time

A third or subsequent DWI conviction carries a mandatory sentence of 180 days in county jail. A court may reduce this by up to ninety days if a person participates in an approved inpatient program for drug or alcohol abuse.

Fines

The fine for a third or subsequent offense is $1,000, with no exceptions.

License Suspension

A third or subsequent DWI conviction requires suspension of one’s driver’s license for eight years. A person may be able to retain limited driving privileges if they have an ignition interlock device installed in their vehicle after their arrest, but before their conviction.

Ignition Interlock Device

After the license suspension period is over, state law requires the use of an ignition interlock device for an additional two to four years.

DWI is a serious traffic offense under New Jersey law. If you have prior DWI convictions on your record, the penalties for another case can be even more severe. You need an experienced and skilled DWI lawyer who can help you understand the legal process and advocate for your rights. Evan Levow has committed 100% of his law practice to representing DWI defendants. Please contact us right away at (877) 593-1717 or online to schedule a free and confidential consultation to see how we can help you with your DWI case.

New Jersey Defines “Operate” Very Broadly

The state’s DWI statute defines the offense as “operat[ing] a motor vehicle” while impaired by drugs or alcohol, or with a blood alcohol concentration (BAC) of 0.08 percent or more. It might seem like “operating” necessarily means “driving” a vehicle. This is not how New Jersey courts have interpreted it, though.

A 1963 New Jersey Supreme Court decision held that proof of driving was not necessary for a DWI conviction. The case involved a defendant who was in the driver’s seat while intoxicated with the engine running. No evidence suggested that he had moved the vehicle from where it was parked.

One justice dissented from the court’s ruling, noting that “penal statutes call for strict construction.” While DWI is not a criminal offense, it can still result in jail time and fines. The dissenting justice concluded that “‘operates’…is and was used as synonymous with ‘drives.’” He noted that the evidence indicated that the brake was on and the gear shifter remained in the park position.

He further offered suggestions for why an intoxicated person might reasonably sit in their car with the engine running and no intention to drive, such as wanting to run the heater to stay warm while waiting for someone to pick them up. Despite these arguments, the majority’s view remains the law in New Jersey.

How Police Might Infer “Intent” to Drive

The following observations by police officers might lead them to conclude that a person intends to drive their vehicle:
– They are seated in the driver’s seat.
– The engine is running.
– The engine is not running, but the key is in the ignition.
The easier it would be for the person to start driving, the more chances the state may have to prove intent to drive.

Defending Against a DWI Charge With No Actual Driving

Sitting in a vehicle while intoxicated is not automatically proof of DWI. Prosecutors must still prove all of the elements of the offense. Possible defenses may include:
– Challenging the evidence of intent to drive, such as by showing that the engine was not running or the defendant was not in the driver’s seat;
– Disputing the claimed reasonable suspicion for questioning the defendant; or
– Challenging other evidence, such as BAC test results.

Police and prosecutors in New Jersey take DWI very seriously. An arrest can have a major impact on your life and future, regardless of whether you are convicted. An experienced and knowledgeable DWI attorney can help you understand your rights. They can advocate for you with prosecutors and in court. Evan Levow has dedicated his entire law practice to representing DWI defendants. Please contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to discuss your case and see how we can help you.

Prosecutors have two ways to prove intoxication in DWI cases. They can introduce evidence of blood alcohol concentration (BAC) to show that a defendant was above the “legal limit” of 0.08 percent. They may also call the arresting officer and other witnesses to testify about how a defendant looked or how they were acting. Slurred speech, slowed or clumsy movements, and glassy eyes could be signs of intoxication. An officer may testify about these kinds of observations, as well as observations about a defendant’s performance on field sobriety tests (FSTs). Video evidence may support an officer’s testimony, but defense attorneys may be able to use it to refute what an officer claims on the stand.

Video evidence can challenge the state’s case in the hands of a skilled defense lawyer. While the prosecution might claim that a video shows a defendant “failing” one or more FSTs, the defense can point to features that dispute this. For example, the officer might have asked the defendant to perform a test on uneven ground that throws off their balance. Weather conditions like rain or snow could make it difficult for anyone to maintain balance. A video could even challenge an officer’s description of a defendant’s behavior or appearance, such as if claims of clumsy movements were the result of a cracked roadway or other obstruction.

Before the state can even begin to prove impairment, it must establish that the officer had reasonable suspicion that justified a traffic stop. An officer might testify that they saw a car run a stop sign or commit another traffic violation, or that they saw a driver operating a vehicle in an unsafe manner. Video evidence can refute that kind of testimony as easily as it can confirm it.

The New Jersey Supreme Court’s decision, issued in January 2025, addresses issues like how long police must retain body cam footage and when the OPRA does not require police departments to release footage. The OPRA tries to balance the need for access to body cam footage with the privacy rights of people shown in those videos. The case centered on a person’s right to obtain footage of themselves when they have not been charged with an offense, which is typically not an issue in DWI cases.

DWI is a serious offense in New Jersey that can have a significant impact on your life, even if you are only arrested for suspicion of DWI. An experienced DWI attorney can advocate for your rights and prepare a defense for your case. Evan Levow has dedicated his law practice to representing New Jersey DWI defendants. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (877) 593-1717.

In 2008, our firm was involved in a case before the New Jersey Supreme Court, State v. Chun, which addressed the use of the Alcotest device in DWI investigations. The court ruled that the Alcotest produces reliable results as long as it receives regular maintenance and calibration. It established procedures for proving that police departments have kept the devices in good repair. Defendants can request this evidence from prosecutors. Failure to maintain a device or to produce the required documentation can result in a court throwing out the BAC results.

The system established in State v. Chun works well enough, assuming that the police keep accurate records of Alcotest maintenance. In 2016, however, news emerged that a State Police sergeant responsible for maintaining numerous devices had failed to perform the necessary calibrations and had falsified records. The New Jersey Supreme Court appointed a special master to review how this affected the reliability of Alcotest results in the counties with inaccurate or falsified records.

The special master found serious doubts about the Alcotest evidence from those counties during the relevant time period, which extended from late 2008 to early 2016. In 2018, the New Jersey Supreme Court adopted the special master’s report in State v. Cassidy.

The 2024 New Jersey Supreme Court decision arose from a 2018 DWI charge. The defendant had a prior conviction from 2012. He argued that the municipal court should disregard the prior conviction because prosecutors did not prove that it was not among the thousands of cases affected by the sergeant’s misconduct. The court did not accept this argument and convicted him as a second DWI offender.

The Appellate Division affirmed the conviction but vacated the enhanced second-offense sentence. It held that prosecutors needed to prove beyond a reasonable doubt that the sergeant’s misconduct did not affect the earlier case. The state supreme court affirmed this ruling. It also ruled that prosecutors must provide data about the sergeant’s misconduct to any DWI defendant with a prior conviction from the period of his misconduct.

DWI is a serious offense under New Jersey law. It can significantly impact your life, even without a conviction. You need a carefully planned and prepared defense strategy. A skilled and experienced DWI lawyer can guide you through the legal process and advocate for your rights. Evan Levow has dedicated his law practice to DWI defense. Please contact the firm today at (877) 593-1717 or online to schedule a free and confidential consultation to see how we can help you.

Both the U.S. and New Jersey constitutions prohibit “unreasonable searches and seizures” and require police to get a warrant before they may search a person or their property. Courts have identified numerous exceptions to the warrant requirement. For example, police may briefly stop a vehicle on the road if they have reasonable suspicion that a driver has committed or is committing a motor vehicle offense or criminal offense. They may not hold a driver longer than is necessary to assess whether an offense had occurred or is about to occur. If they have probable cause to believe driver has committed an offense like DWI, they may continue the investigation, such as by asking them to perform field sobriety tests.

These types of stops are sometimes known as Terry stops. The name comes from the U.S. Supreme Court’s 1968 decision in Terry v. Ohio. The case established rules for traffic stops and other brief detainments by police. Generally speaking, police may not expand their search to additional locations under Terry without a warrant or another exception to the warrant requirement.

Evidence obtained from an illegal stop may be inadmissible in court. This is known as the “fruit of the poisonous tree” rule. The “tree” is the unlawful search. Any evidence that results from that search, and which police could not obtain otherwise, is tainted by the constitutional violation. A defendant can file a motion to suppress evidence obtained illegally.

In the Appellate Division case mentioned above, a police officer attempted to pull the defendant’s car over after allegedly seeing her driving erratically. He followed her to her home, where she drove into her garage. Her vehicle collided with a refrigerator. The officer entered the garage to question the defendant. He arrested her after she did not perform well on field sobriety tests.

The defendant moved to suppress the evidence obtained from the stop, arguing that the officer lacked probable cause to enter the garage. The municipal court found that the officer was justified under the “community caretaker” exception. The Appellate Division disagreed and reversed the lower courts’ guilty verdict. It held that the officer needed the defendant’s consent or a warrant to enter her home.

DWI is a serious offense in New Jersey that can have a significant impact on your life. An experienced DWI lawyer can prepare the best possible defense for your case. Evan Levow has dedicated 100% of his law practice to DWI defense. To schedule a free and confidential consultation to see how we can help you, please contact us today online or at (877) 593-1717.

DWI is a motor vehicle offense in New Jersey, not a criminal offense. This means that DWI cases do not always have the full range of procedural and constitutional protections found in criminal cases. For example, New Jersey DWI defendants are not entitled to a trial by jury. The flip side of this is that the penalties for DWI convictions are not as harsh as they might be if they were criminal charges.

New Jersey PTI programs like Recovery Court are only available in criminal cases. DWI defendants are not eligible, essentially by definition. The only criminal offense under New Jersey law that may arise from a DWI case involves certain scenarios in which a person drives with a suspended license, and the suspension is due to a DWI conviction. This offense is a fourth-degree crime that has a minimum sentence of 180 days in jail. A person convicted of this offense is still not eligible for Recovery Court, which excludes convictions with mandatory minimums.

A DWI defendant’s options in most cases are to fight the charges or plead guilty. New Jersey prosecutors are allowed to plea bargain DWI cases, but in many cases are reluctant to do do, or simply will not plea bargain for various reasons. This places the focus on punishment instead of recovery. A first DWI conviction includes a mandatory twelve-hour IRDC program. The DWI statute makes no mention of in-depth addiction treatment until a third or subsequent conviction. At that point, a defendant may serve ninety of the mandatory 180-day sentence in an inpatient alcoholism treatment facility.

More than thirty states have DWI courts that emphasize treatment and recovery. Participants must undergo rigorous treatment programs and submit to regular drug or alcohol testing. They may have to agree to waive their Fourth Amendment rights and allow police to search their homes without a warrant to look for contraband. Supporters of these programs often argue that they help people avoid repeat offenses by addressing what makes the offenses happen in the first place.

Even though New Jersey does not have a DWI court program, seeking help for drug or alcohol issues can still be helpful to one’s DWI case. Prosecutors and judges are often happy to see that a DWI defendant is consistently seeking treatment, such as by attending Alcoholics Anonymous or Narcotics Anonymous meetings.

DWI attorney Evan Levow advocates for defendants facing alleged charges in New Jersey municipal courts. He can advise you of your rights, help you understand your options, and prepare the best defense against the state’s allegations. To schedule a free and confidential consultation with a member of our team, please contact us today online or at (877) 593-1717.