What Is Implied Consent in New Jersey?

March 4, 2019 by

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Even if you’re not being pulled over for suspicion of drinking and driving, it’s not unusual for the police officer, in the first few moments of the traffic stop, to inquire if you have been drinking. If you admit that you have, or the officer has any other reasonable belief that you may be impaired, the officer will typically ask you to submit to a blood alcohol test. What are your rights? Can you refuse to take the test? What happens if you do?

Implied Consent in New Jersey

The legal doctrine of implied consent governs your rights, as well as the consequences, when you have been requested to provide a blood alcohol sample while driving. Under the principle of implied consent, the police officer technically does not have to obtain your permission or consent to test your blood alcohol content (BAC). The officer will not need to show that you affirmatively or verbally agreed to the test—because consent is implied, that will be assumed.

The officer may not force you to take the test, and cannot draw your blood involuntarily. However, the request for the BAC sample is more of an instruction/order than request for participation.

Under the theory of implied consent, by getting behind the wheel of a car, you impliedly agree to provide a blood alcohol test when a police officer (who has reasonable cause) requests one. If you refuse, you will automatically have your drivers license suspended for a minimum of 12 months (for a first offense). A second refusal will lead to a two year suspension and a third refusal will result in a 10 year suspension.

Contact Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call me at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Filed Under: Blood Alcohol Tests Tagged With:

The Requirements for Conducting a Blood Alcohol Test in New Jersey

January 2, 2019 by

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After a long day at work, you stopped at your favorite watering hole and had a couple beers with your pals. As you’re headed home, a police officer notices that you have a tail light that’s not working, or you don’t come to a complete stop at a light. If the officer pulls you over, can he or she ask you to submit to a blood alcohol test, even if you weren’t driving erratically and there are no visible signs of intoxication? Does the law place any restrictions on when and whether you can be required to take a blood alcohol content test?

As the law is currently construed in New Jersey, before a police officer can require that you submit to a blood alcohol test, one of two things must happen: the officer must either get your verbal consent to a test, or the police officer must have a warrant. That’s because drawing your blood is considered a search, covered by the protections found in the 4th Amendment to the U. S. Constitution.

That’s not to say, though, that there won’t be consequences if you refuse to submit to a blood alcohol test. While the refusal to take the test cannot be construed as evidence of guilt, you can face automatic suspension of your driving privileges. New Jersey adheres to the law of implied consent, which means that, by getting behind the wheel, you automatically consent to a blood alcohol test if one is requested. As a practical matter, it’s generally better to voluntarily submit to the BAC test and try to challenge the validity of the findings, if necessary.

A police officer cannot “force” you to take a blood alcohol test. Nonetheless, the officer may obtain a “telephonic warrant,” where a judge grants a verbal warrant based on the circumstances.

Contact Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call me at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Filed Under: Blood Alcohol Tests Tagged With:

Refusing to Take a Blood Alcohol Test in New Jersey

November 6, 2018 by

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When you’ve been pulled over while driving, one of the first questions you’ll often face from the police officer is “have you been drinking?” If you answer affirmatively, the officer will customarily ask you to submit to either a field sobriety test or a blood alcohol test. Can you refuse to take a breath test? What are the consequences if you do?

The Concept of Implied Consent

Under New Jersey law, the doctrine of implied consent applies when you are pulled over in a traffic stop. The implied consent law stipulates that, should you be lawfully detained by a law enforcement officer who has probable cause to believe that you are under the influence of alcohol, the fact that you are behind the wheel is considered implied consent to allow you to be subjected to a blood alcohol test.

The officer cannot compel you to take the test. However, the test must be administered at the time of your detention and refusal to submit to the test may have consequences. According to New Jersey law, the first time you wrongfully refuse to submit to a BAC test, you face a seven month suspension of your driving privileges. A second refusal (during a separate arrest) can result in a two year suspension and a third refusal can cause you to lose your driving privileges for 10 year. There’s also typically a fine assessed for refusing to take a blood alcohol test—anywhere from $300 to $1,000, depending on how many times you’ve been convicted.

Challenging Your License Suspension

The most effective way to challenge your license suspension is to bring the validity of the traffic stop into question. Police must have probable cause to stop you…if you can show there was no probable cause, any evidence gathered by the police officer will be inadmissible and the charges may be dropped.

Contact Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call me at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Filed Under: Blood Alcohol Tests Tagged With:

Can You Beat a New Jersey Traffic Ticket?

October 10, 2018 by

New-Jersey-Traffic-Ticket

Did you know that plea bargaining is not allowed in a DUI prosecution in New Jersey? You can plead guilty, but you’ll simply have to accept the punishment handed down by the court. You may, however, be able to get the charges reduced or dismissed entirely if you can successfully challenge the admissibility of critical evidence, such as the blood alcohol test.

Ways to Challenge a Blood Alcohol Test

If you’ve been pulled over while driving in New Jersey and issued a ticket for a moving violation of any kind, you’re typically faced with two options—pay the ticket and accept the consequences or appear before the judge and contest the citation. Don’t be confused—the decision to pay the ticket amounts to a guilty plea and may result in points added to your driving record.

If, on the other hand, you opt to challenge the ticket, there are a number of things you can do. First, you can write the police officer a letter, documenting any extenuating circumstances. The police officer has the discretion to dismiss the charge before you are scheduled to go to court.

Next, you can present your case to the prosecutor. While you cannot plea bargain on a DUI charge in New Jersey, you can seek to have the prosecutor reduce or dismiss charges on other traffic offenses.

If you are unable to convince either the police officer or the prosecutor to reduce or drop the charges, you can schedule a trial before a municipal court judge. You can represent yourself, but it’s in your best interests to have a lawyer advocate for you. The judge won’t be able to help you and the prosecutor will be prepared.

At the trial, you’ll want to bring as much evidence as you can to support your position. If you were ticketed for running a stop sign, but the sign was partially hidden, bring a picture that shows that. If there were witnesses who can testify that you did not violate the law, make certain they are present in court.

Contact Attorney Edward M. Janzekovich

To schedule an appointment with an experienced New Jersey DUI defense attorney, contact my office online or call me at 732-257-1137. There is no cost or obligation for your first meeting. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Filed Under: Blood Alcohol Tests, DUI Tagged With:

Challenging the Blood Alcohol Test in a New Jersey DUI

September 3, 2018 by

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Did you know that plea bargaining is not allowed in a DUI prosecution in New Jersey? You can plead guilty, but you’ll simply have to accept the punishment handed down by the court. You may, however, be able to get the charges reduced or dismissed entirely if you can successfully challenge the admissibility of critical evidence, such as the blood alcohol test.

Ways to Challenge a Blood Alcohol Test

One of the best ways to fight a DUI in New Jersey is to challenge the validity of the blood test. To do so, you need to pose legitimate questions about the reliability of the test and the results. Here are some of the questions to ask:

  • Where was the blood test taken and who administered it? Was it done by a licensed doctor or a registered nurse? If the prosecution doesn’t know who took your blood and cannot produce that person to testify at trial, the case may be dismissed.
  • Often, before drawing blood, a nurse or doctor will clean your skin with an iodine swab. Studies have shown that this can have an impact on blood alcohol readings. Ask if that was done. If so, the findings may be subject to challenge.
  • Has the blood alcohol testing machine been properly maintained? When was it last calibrated or serviced? Has it been found to produce inconsistent or false readings in the past?
  • Are you able to conduct an independent test of the blood? Sometimes, police will discard any blood that remains after the initial test. If there’s none left over for you to have an independent test conducted, you may be able to get the charges thrown out.

Contact Attorney Edward M. Janzekovich

To schedule an appointment with an experienced New Jersey DUI defense attorney, contact my office online or call me at 732-257-1137. There is no cost or obligation for your first meeting. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Filed Under: Blood Alcohol Tests, DUI Tagged With:

Forced Blood Draws for Drunk Driving Suspects

October 5, 2017 by

Miniature car with alcohol bottle, handcuffs and legal scales

The topic of forced blood draws has recently been in the headlines after video was released of a Utah hospital nurse who was placed in handcuffs and threatened with arrest after refusing a police officer’s request to take a blood sample from an unconscious patient.

A few weeks ago, Salt Lake City Detective Jeff Payne handcuffed and dragged Nurse Alex Wubbels out of a hospital for refusing to obtain a blood sample from an unconscious patient. Nurse Wubbels refused to get the blood sample, because she knew that the law required the officer to obtain either consent from the patient for the blood draw or obtain a warrant from a judge. When Ms. Wubbels insisted on obeying the law, Payne used force on her in an attempt to get her to comply – all of which was caught on video and has been repeatedly seen in the news.
Salt Lake City’s mayor has since apologized to the nurse. Detective Payne was placed on administrative leave as a result of the incident and fired from his part-time position as a paramedic. A second Utah police officer, Lt. James Tracy, has also been placed on administrative leave.

Although the case didn’t occur in New Jersey, a lot of the same rules and policies would apply if it had taken place at a New Jersey hospital instead. In fact, police officers, nurses, prosecutors, judges, and attorneys are regularly prepared to deal with the situation of a request for a blood sample for an unconscious patient in this state. If the rules are not followed exactly, it is possible that any evidence obtained from an illegal blood sample could be excluded from court. For that reason, it is extremely important to contact an attorney as soon as you or anyone you know is arrested, charged, or convicted of drunk driving or driving under the influence. An experienced attorney may be able to challenge the evidence against you or get the charges thrown out completely.

Why are Blood Samples Used in DUI/DWI Cases?

When somebody is charged with drunk driving, one of the ways the state can prove its case is by introducing evidence that the driver’s blood alcohol content (BAC) was above the legal limit of .08% or higher. Most people are familiar with the breathalyzer test used to measure BAC, but a breathalyzer cannot be used in all situations. For instance, a driver who is involved in a car accident may be unconscious or too injured to provide a breath sample. In those cases, the investigating officer may want to get the driver’s blood sample tested for alcohol concentration.

When Can Police Officers Get a Blood Sample?

After a motor vehicle accident, wherein a driver is injured, the driver will probably be taken to a hospital for treatment. At the hospital, a police officer will only be able to get the driver’s blood sample under two circumstances: 1) with the driver’s consent, or 2) with a warrant. If a driver is capable of providing consent, then he or she may allow a police officer to take a blood sample. Obviously, a driver can only give consent if he or she is conscious. A driver also cannot give consent if he or she is being sedated or otherwise treated in a way that renders him or her incompetent.

In order to get a warrant, the police officer must apply to a judge for a warrant for the blood sample. If the request is being made after regular business hours, an emergency on-duty prosecutor and emergency on-duty judge will need to be contacted. Regardless of the timing, the prosecutor and the officer will need to demonstrate to a judge that they have probable cause to obtain the blood sample: meaning that the officer has well-grounded suspicion based in citable evidence that the driver had been operating the vehicle while intoxicated – such as smelling alcohol on the driver’s breath. The judge will need to agree, and a warrant will need to be issued and signed. Only after a warrant is issued will the officer be able to order the hospital to get the patient’s blood sample.

How an Attorney Can Help

Although there are numerous ways to challenge a blood sample, one of the ways to challenge blood BAC evidence is to demonstrate that the blood draw was impermissible. This can be because a driver failed to give proper consent, because the police officer failed to obtain a warrant, or because the police officer did not have sufficient probable cause to justify the warrant. If you or someone you know is charged with driving while intoxicated, an experienced lawyer be able to review the evidence against you and put up the best defense on your behalf. An attorney may even be able to have the case dismissed completely.

New Jersey DUI Attorney Edward M. Janzekovich Will Be There if You’ve Been Charged with Drunk Driving

DWI / DUI cases can often involve complicated issues of evidence, and successfully challenging that evidence requires knowledge and experience about the law. If you or someone you know is facing a DWI charge, a knowledgeable drunk driving attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, DWI - DUI, DWI & DUI Checkpoints

New Jersey DUI/DWI Discusses the Unreliability of Urine Test Results to Prove Blood Alcohol Content

July 11, 2017 by

blood-testWhen somebody is charged with driving under the influence of alcohol, the government is responsible for proving all elements of the offense based on clear and convincing evidence. In New Jersey, this can be proved in various ways, but the most common is through the use of blood alcohol evidence to show that the driver was operating a vehicle with a blood alcohol content (BAC) of .08% or higher.

Most people are familiar with the common breathalyzer test, which is used to measure BAC based on a driver’s breath sample. In most cases, the breathalyzer results will make up the only evidence of BAC in a prosecutor’s case. Other times, however, the state may also be able to rely on blood or urine samples to satisfy the government’s burden of proving that a driver had a BAC of .08% or higher when he or she was operating the vehicle.

While the Edward M. Janzekovich law blog has previously discussed the unreliability of urine testing to determine marijuana use, many experts now also believe that urine testing is the least reliable way to determine a driver’s BAC when it comes to proving charges for driving while intoxicated with alcohol.

When Is Urine Testing Used?

Due to the fact that many substances other than alcohol will not be detected by a breathalyzer, police officers may sometimes ask for or get a warrant for a driver’s urine sample if the officer suspects the driver is under the influence of drugs. For example, the presence of marijuana may be in someone’s urine, but there is no currently reliable breath test for marijuana.

Other times, a driver suspected for DUI/DWI may be involved in a motor vehicle accident. If certain injuries occur, such as an injury to the face or nose, or if the driver is hospitalized, a breathalyzer test may not be possible. At those times, a blood or urine test may be requested.

Regardless of why a urine test is obtained, once the state has legal access to a urine sample, the prosecution may seek to use the urine sample as evidence of the driver’s BAC.

The Unreliability of Urine Tests

Importantly, urine tests are considered the least reliable form of chemical test, and can often be effectively challenged in court. In fact, the National Institute of Drug Abuse has found that more than 20 percent of the labs that process urine tests for the presence of drugs and alcohol have reported “false positives.” This means that about 20 percent of the labs reported the presence of drugs or alcohol in drug-free or alcohol-free urine samples.

Furthermore, errors are quite common in urine testing because the technicians analyze water and not blood. BAC results in urine tests are usually inflated because the concentration of alcohol in urine is approximately 1.33 times the concentration of alcohol in blood. Drug screens of urine also tend to confuse similar chemical compounds and can lead to inaccurate results. Urine tests show only the presence of metabolites – inactive traces of previously ingested substances – not the actual drug or alcohol consumed.

Unsurprisingly, New Jersey courts consider urine testing the least scientifically reliable form of chemical test.

Challenging Urine Test Results

Just because you have incriminating urine results does not automatically mean that the state can use this evidence to convict you of a DUI/DWI. Certain protocols must be observed during the administration of a legal urine test in the state. The driver must be given a certain amount of privacy while still ensuring the accuracy of the sample. Drivers should also be instructed to empty their bladders, wait 20 minutes, and then urinate again. There is also strict storage protocol.

Because urine tests are considered to be extremely unreliable in both drunk driving and driving under the influence of drugs cases, it is possible to successfully challenge the results of such tests. If you or someone you know is charged with driving under the influence of alcohol or drugs, you should contact an experienced DWI attorney immediately. An experienced lawyer will know how to identify the potential flaws in a case based on urine test evidence and can incorporate those methods into a solid defense strategy on your behalf.

New Jersey DUI Attorney Edward M. Janzekovich Can Help Even When There Is Evidence of Drunk Driving

DWI/DUI cases can often involve complicated issues of scientific evidence, and successfully challenging that evidence requires knowledge and experience. If you or someone you know is facing a DWI charge, a knowledgeable drunk driving attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, Breathalyzer Calibration Tagged With:

New Jersey Drunk Driving Attorney Examines Proposed Law Making Ignition Interlock Devices Mandatory for All DWI Convictions

June 28, 2017 by

DWI Convictions

A new bill introduced before the state legislature last year by State Senator Nicholas Scutari may drastically change the way drivers convicted of DUI in the state are convicted.  The proposed changes to the State’s Driving While Intoxicated law, N.J.S.A. 39:4-50, seek to lessen some penalties for first time drunk drivers while making others more universal –  such as making Ignition Interlock Devices mandatory for all drivers convicted of DUI/DWI, even first time offenders.

Similar to the other proposed Senate Bill 404, discussed here earlier this year, it is important to recognize that there is no guarantee that this proposed bill will ever pass.  Also like that bill, the goal of Senator Scutari’s introduced legislation is to provide an alternative to drivers convicted of driving under the influence of alcohol, showing some added leniency to such drivers while simultaneously making the roads safer.

Which Parts of N.J.S.A. 39:4-50 Might Be Affected?

In New Jersey, the legal Blood Alcohol Content (BAC) limit for drunk driving in the state is .08%.  Under current law, someone convicted of DWI for the first time can have their license suspended for either 3 months (if his or her blood alcohol content is between .08% and .099%) or 7 to 12 months (if his or her blood alcohol content is .10% or greater). A judge has a lot of flexibility in deciding how long to suspend a driver’s license in those circumstances.

At the same time, a first time offender who is convicted with a blood alcohol content of .15% or greater must have an ignition interlock device installed on his or her vehicle during the period of license suspension until between 6 months to 1 year following license restoration.  An ignition interlock device is a device put on a car that requires a driver to provide a clean, alcohol breath sample before he or she can start the car.

How Will These Parts of the Law Change If the Proposed Bill is Passed?

Under Senator Scutari’s introduced legislation, a first time drunk driver who is convicted of driving with a BAC of between .08% and .099% will only have his or her license suspended for 30 days – a significant reduction from 3 months.  Similarly, a driver who is convicted of driving with a BAC of between .10% up to just less than .15% will have his or her license suspended for 45 days, while a driver who is convicted of driving with a BAC of .15% or higher will have his or her license suspended for 90 days.

At the same time, the proposed legislation hopes to make installation of an ignition interlock device mandatory for ALL drivers convicted under the DWI law.  The device must remain on the driver’s vehicle for the period of license suspension as well as an additional period of time between 3 months and 18 months after the driver gets his or her driving privileges reinstated.

What These Changes Would Mean if You Are Convicted

Losing one’s driving privileges is often the most severe penalty that first time drunk drivers face, because the penalty often means that a driver also loses his or her ability to go to work or otherwise provide for his or her family.  Reducing the period of license suspension for first time offenders recognizes this reality and tries to address the way the law punishes more than just the drunk driver.

At the same time, recent reports have estimated that ignition interlock devices have prevented more than 39,000 instances of drunk driving in New Jersey since 2010.  Therefore, requiring drivers to install an ignition interlock device attempts to make the roads safer for everyone.  The proposed law would not prevent a driver from being able to use his or her vehicle – for instance, to drive to work or buy groceries if necessary – but it would guarantee that the car could only be operated after a clean, alcohol-free breath sample is provided. 

The largest downside to the proposed law is that New Jersey requires the driver to pay for his or her own ignition interlock device, including the installation.  In addition to the nearly $1000 in fines that first time drunk drivers must already pay, an ignition interlock device could cost $70-150 to install and about $60-80 per month for additional monitoring and calibration.

Regardless of whether or not this bill becomes law, a person charged with driving under the influence of alcohol or drugs should always contact an experienced drunk driving attorney, who will be able to provide the best advice or possibly defend the case and get the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Is Looking Out for You

A charge for driving under the influence of alcohol can carry extremely serious penalties that affect you as well as your family and loved ones.  At the same time, new laws, rules, and regulations take effect all the time. For that reason, it is important to consult a drunk driving lawyer knows what to look for in your specific situation.  If you or someone you know is charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney will know the best way to help and can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, Driving Under the Influence of Drugs, DWI - DUI Tagged With: , , , , , , , , ,

New Jersey DWI Attorney Discusses Possible Changes to the 0.08% Blood Alcohol Content Limit

April 13, 2017 by

Blood Alcohol Content LimitFor nearly two decades, the state of New Jersey has had a legal blood alcohol content (BAC) limit of .08%. That means that if you are pulled over in this state and suspected of drunk driving, and you take a properly administered breathalyzer test that determines you had a BAC reading of over .08%, you can be found guilty of drunk driving.

The BAC legal limit was lowered from .10% to .08% in every state across the nation nearly a decade ago (Delaware was the last state to adopt the .08% standard in 2004), after the National Transportation Safety Board (NTSB) made recommendations that the change could save lives. In 1998, a new Federal incentive grant was created to encourage states to adopt the .08 BAC illegal per se level, and, in 2000, Congress adopted .08 BAC as the national illegal limit for impaired driving.

Now, the NTSB is issuing new recommendations that the .08% BAC limit should be lowered again to .05% – and there are a few states that may be willing to follow suit, including New Jersey.

Utah to Become the First State with a .05% BAC Limit

Earlier this month, Utah Governor Gary Herbert signed the state bill that would lower the legal BAC limit to .05%, stressing repeatedly that it was an issue of public safety. The law would take effect in that state at the end of 2018. The law faced opposition from the local restaurant and tourism industry, who feared that the new law would make drivers irrationally afraid of consuming alcohol on business premises. However, the state is basing its decision on a number of studies that show a lower BAC limit could save lives, as well as precedent set by most countries in Europe.

Until then, the state plans to address some of the complications that could arise with lowering the

Why the NTSB Wants to Lower the BAC Limit

The NTSB is recommending that all states change their laws to lower the blood alcohol limit from .08% to .05% based on the belief that it will save lives and make the roads safer for everyone who drives on them. The NTSB actually made these same recommendations to congress in 2013, but the recommendations were rejected at that time.

The NTSB is renewing its push to change the law, pointing to studies that say lowering the legal limit will result in 500 to 800 lives saved every year across the country, based on data from the Centers for Disease Control (CDC) that shows the average 160-pound male man will have impaired coordination and difficulty steering with a BAC of .05%. That same man would be at the .05% limit if he only drink two or three drinks in an hour, as opposed to four alcoholic beverages to reach the .08% level.

What This Could Mean for You

Utah is not a complete outlier in trying to lower the legal BAC limit. Several states have laws that lower the BAC legal limit for second or third time DWI/DUI offenders, and several New Jersey publications discussed the issue when the NTSB released its recommendations last year.

If the BAC limit is lowered in this state, it could mean that the average driver would be more easily subject to arrest for driving under the influence of alcohol. For instance, a 120-pound person may be near or at the .05% limit after consuming only one drink – such as a glass of wine with dinner.

At the same time, the law would be much harder to enforce, because a person may not be as visibly intoxicated at the .05% level, and a police officer may have a harder time deciding whether or not to bring a driver back to the police station to administer a blood alcohol test.

Regardless of whether or not the law does change, we at the Edward M. Janzekovich Law Blog always recommend that you avoid drinking and driving. Depending on who you are, what you’ve had to eat that day, and/or what you are drinking, one drink can be enough to push your BAC over the legal limit, whether that limit is .05% or .08% or even .10%. At the same time, a BAC reading is not always perfect, and there may be legitimate reasons to challenge your arrest or charges for driving while intoxicated. If you or someone you know is pulled over or charged with drunk driving, the penalties can be extremely severe. For that reason, it is important to always consult an experienced lawyer. A DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help if You Are Arrested for Drunk Driving

A DUI/DWI charge can have life-changing consequences for any driver. Such a charge, and possible trial on the charges, can also be extremely complicated, especially with the laws changing all the time. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, Criminal Law, Drugged Driving, Drunk Driving Tagged With: , ,

New Jersey DUI Lawyer – Why You Can’t Expunge a DWI / DUI Conviction in New Jersey and What That Means When Applying for a New Job

February 14, 2017 by

New-Jersey-Drunk-DrivingThe law in New Jersey is different than 48 other states in that it treats a DWI/DUI as a motor vehicle offense instead of a criminal violation. As such, driving under the influence of drugs or alcohol is recorded on a driver’s Department of Motor Vehicle (DMV) records, aka a driver’s abstract.

Moreover, in New Jersey, expungements are limited to only criminal offenses, and, since DUI/ DWIs in New Jersey are traffic offenses and not criminal offenses, a conviction for drunk driving can never be expunged from someone’s driving record. Only criminal arrests or convictions that fall under the 2C code can be expunged in New Jersey. However, this rule is not entirely negative. The rule does result in the benefit of the DWI/DUI not showing on an individual’s criminal history.

Note however, this doesn’t mean convicted offenders won’t face criminal penalties. The law considers driving under the influence as a pseudo-crime or quasi crime, and the consequences can be severe, including fines and loss of driving privileges. Prison time is also possible for a DWI/DUI, and it is mandatory when a driver commits a second or third offense. For example, by New Jersey law, third-time offenders are sentenced to a prison term of 180 days or more.

DWI/DUI and its Effect on Employment Applications

Since drunk driving is not considered a criminal offense under the New Jersey criminal code, drivers who have been convicted and are applying for jobs after their conviction do not have to answer, “yes,” if the employer asks if they have ever been convicted of a crime. Sometimes, however, employers may ask if a person has been convicted of anything but a minor traffic offense. DWI convictions are considered major traffic offenses, so in those cases, an applicant with a conviction for driving under the influence of alcohol or drugs should answer truthfully that they do have a history of more than just minor traffic offenses.

Many times, potential employers conduct background checks as part of their hiring process. Such background checks usually include an applicant’s driving record (which will show the drunk driving conviction), criminal record, court records and incarceration records. New Jersey does not report DUIs to the National Crime Information Center (NCIC) — a common criminal history database that employers check – so the DUI/DWI will not show on the NCIC check.

Exceptions – When You Must Disclose Your DWI/DUI Conviction to a Potential Employer or Other Reviewer

Title VII of the Civil Rights Act of 1964 prohibits employers across the United States from denying employment to individuals with a conviction unless they can prove a compelling business reason. Certain professions, like teachers, nurses, doctors and law enforcement officials, require disclosure as a condition of employment. There are other situations where a conviction must also disclosed, such as when a person is applying for a professional license – such as a law school graduate applying for admission to a state bar.

Notably, positions that require driving have obvious compelling business reasons to discriminate against DWI/DUI offenders. Therefore, someone with a DWI/DUI conviction who is applying for a position as a commercial truck driver, cab driver, delivery truck driver, etc. should disclose their prior DWI/DUI conviction.

For all these reasons, it is especially important to hire an experienced New Jersey DUI/DWI attorney if you have been arrested or charged with drunk driving in this state. Not only do penalties include the possibility of jail time, significant fines, and loss of driving privileges – a conviction for driving while intoxicated can also result in the loss of current of future job possibilities. An experienced lawyer can help you take advantage of certain laws that can lessen the penalties you must face or may be able to have the charges against you dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help Drivers Facing DUI Charges

The law regarding criminal history checks and expungements of DWI/DUI can be complicated and is different for everyone, depending on their situation. If you or someone you know is charged with drunk driving or driving under the influence in New Jersey, knowing what your rights are can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Filed Under: Blood Alcohol Tests, Criminal Law, Driver's License Suspension, Driving Under the Influence of Drugs, Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, DWI Video Evidence Tagged With: ,

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