DWI / DUI Frequently Asked Questions

If a police officer asks me if I’ve been drinking, what do I say?

You are not required to answer an Officer’s questions other then to provide you identifying information.  If you have not been drinking, you should certainly tell the officer that.  If you have been, you can either choose to admit it or simply say that you would prefer not answer the question.  Lying to an officer is always a bad idea.

Do I Have To Take A Field Sobriety Test?

No. You do not have to take a field sobriety test if asked by a NJ police officer. These tests are often not accurate and do not take into account any medications you may be taking, poor balance, or your stamina at the time of test. You many politely refuse to participate in a field sobriety test, but be aware that they may arrest you and take you to the police station where they will ask you to take a chemical test—breath, blood, or urine. You are required by law to take a breath test. Refusal to take breath test will result in a charge or ‘Refusal’ which will result in a loss of license and fines.

Can My DWI Case Be Dismissed Because The Police Never Read Me My Miranda Rights?

No. Although the police officer arresting you should tell you your Miranda rights, often they do not. Any answers to questions asked during or after the arrest may not be used by the prosecution if you were not read your rights. Do not confuse Miranda warnings with the Standard Refusal Statement read to someone before they are offered a breath test a police headquarters. You do have a right not to answer questions, you do not have a right to refuse a breath test without incurring penalties.

Do I have to take a breathalyzer test?

By driving on the roads in the state of New Jersey, you are consenting to give a breath sample to do chemical testing for the purposes of determining the presence of alcohol in your body. If the police officer has reasonable grounds to believe you were driving while intoxicated and you refuse to provide valid breath samples after being read the Attorney General’s standard form warning you of the consequences, you can be convicted of Refusal and face the penalties which can include a license suspension.

Am I better off Refusing to take a Breath Test?

The first thing you have to keep in mind is that if you refuse to submit to a breath test you can face not only the penalties for Refusal, but the penalties for the DWI as well. Your decision well may depend upon what number offense it will be for you. Secondly, you need to understand that you can still be convicted of the DWI based upon how you performed on the field sobriety tests, your driving, and your general demeanor.

First Offender – If you just take the test and blow under a .15% you will not lose your license, but only have an interlock. If you blow over a .15% you lose your license for 4 to 6 months plus have an interlock after you get it back. The penalty for Refusal is a 6 to 12 month interlock. So if you think you are going to blow under a .15% you might as well take the test. If you are going to blow over a .15%, the way that the new statute (effective 12/1/19) reads, by not blowing you receive only an interlock and not an actual suspension.

Second Offender – If you take the test and blow over a .08% you are going to lose your license for 1 to 2 years plus have a 2 to 4 year interlock. If you refuse it, you lose your license for 1 to 2 years plus have a 2 to 4 year interlock. If you are convicted of both, the Judge must run the penalties consecutive. There is simply no good reason for a potential Second Offender to refuse the test.

Third Offender – If you take the test and blow over a .08% it is an 8 year loss of license plus a 2-4 year interlock plus 180 days in jail. If you refuse to take the test it is an 8 year suspension plus a 2-4 year interlock but no jail sentence. This is a big gamble. If you are going to blow over, taking the test increases your risk of a DWI conviction and the 180 days in jail. Refusing the test decreases your chances of a DWI conviction, but, makes it almost certain you are going to lose your license for 8 years on the Refusal. If you end up getting convicted of both, you would lose your license for 16 years and get 180 days in jail. Of course, if you are going to blow under the .08% there is no reason to refuse.

Will I go to jail if I’m convicted of a DWI/DUI?

First time offenders usually do not go to jail, but if it is your second, third or a subsequent offense, your chances of receiving time in jail greatly increases. Please refer to the DWI/DUI Penalties page.

What is The "Ten Year Rule"?

The “Ten Year Rule” means that under some circumstances a 10 year old DWI conviction will not count as a prior conviction for a DWI/DUI sentencing. For example if you had a first violation on Jan. 1, 1997 and you were arrested again on Jan. 1, 2009, you would be treated as a first offender. The actual application of this rule can be very complicated, especially when dealing with multiple offenders, and really requires competent legal advice.

Can New Jersey Convict An Out-of-State Driver Of A DWI?

The simple answer is ‘Yes.” New Jersey’s courts can convict you and impose jail time and fines. However, New Jersey Courts can only suspend your your driving privileges in the State of New Jersey and cannot suspend or revoke your your actual license if it was issued in another state. However, the conviction is reported to your home state which may suspend your license. Please see our DWI/DUI for out-of-state drivers page.

Is an underage DWI treated the same as an adult?

Underage convictions with a BAC of 0.01-0.08% are less severe than adults’ penalties. A person under the legal drinking age with a BAC of greater than 0.08% is subject to the same penalties as adult DWI offenders. For more on underage DWI, click here.