New Jersey DUI Attorney Discusses the Elements of Refusal and the Penalties You Could Face

December 12, 2017 by

Close up shot of an alcohol tester

Many people do not realize that if you are pulled over in New Jersey and a police officer has probable cause to believe you have been driving drunk, you are required to submit a breathalyzer sample. The law is written in such a way that it is a condition of being allowed to drive in New Jersey. As we have discussed here in the past, in the Edward M. Janzekovich Law Blog, this requirement even surpasses your rights given under the Miranda warnings, which many people are familiar with – meaning you do not even have the right to speak to an attorney or to remain silent before submitting a breath sample at the police station.

If you fail to comply with the requirement to provide a breath sample, you can be charged and/or convicted under N.J.S.A. 39:4-50.4, Refusal to Take a Breath Test, which could carry equally heavy penalties to drunk driving. It is important to note that if you are pulled over, a police officer may ask you to take a roadside or portable breath test (PBT). The PBT is less accurate and refusing to submit to the PBT does not violate the Refusal law. It only counts as “Refusal to Take a Breath Test” if a driver refuses to submit to the more accurate, official breath test that occurs back at a police station.

The Elements of Refusal to Submit to a Breath Test

The offense of refusal to submit to a breath test requires the government to prove four elements beyond a reasonable doubt, before you can be convicted:

  1. The arresting officer had probable cause to believe that the driver had been driving or was in actual physical control of a motor vehicle on the public road, street, highway or other area of the State while under the influence of alcohol or drugs.
  2. The driver was arrested for driving while intoxicated.
  3. The officer requested the driver to submit to a chemical breath test and informed the driver of the consequences of refusing to do so in a language the defendant can understand while sober.
  4. The defendant thereafter refused to submit to the test.

As we have discussed in the past, the State may be able to charge you with refusal even if you think you are complying with the request to submit a breath test. For instance, the requirement to “submit to the test” includes a requirement that you provide a breath sample that is large enough for the machine to test.

Accordingly, this area of law can be extremely complicated. Because a prosecutor must prove all of these elements in order to convict a driver of refusal, it is important to always contact an experienced DUI lawyer if you or someone you know if ever charged with drunk driving or related motor vehicle violations. A good attorney will be able to review the evidence against you and determine if the state can sufficiently prove all the elements of a crime against you, and will be able to present the best defense on your behalf.

Punishments for Refusal to Submit to a Breath Test

New Jersey law authorizes serious fines for all violators of the Refusal law that ranges from $300 to $500 for a first offense, $500 to $1000 for a second offense, and $1000 for a third or subsequent offense. This does not include any court fees and other applicable monetary sanctions, such as the $100 Drunk Driving Enforcement Fund surcharge. This also does not include the extra $1000 per year motor vehicle surcharge that the driver will have to pay for three years, as well as any increase in insurance premiums that the automobile insurance company will choose to add.

A convicted driver will also be required to attend an alcohol education program at the Intoxicated Driver Resource Center (IDRC). This program includes a fee of $75 per day for a first offender and $100 per day for subsequent offenders. Failing to attend the IDRC will result in a jail sentence, and could result in permanent administrative loss of license for subsequent offenders.

A driver can also lose his or her license for Refusing to Submit to a Breath Test. The period of license suspension is the same as if the driver had been convicted of driving while intoxicated, and ranges from seven (7) months to one (1) year for a first offense, two (2) years for second offense, and ten (10) years for a third or subsequent offense.

Finally, a driver will be required to install an ignition interlock device on his or her vehicle. This requirement ranges from six (6) months to one (1) year after the period of license suspension for first-time offender, or one (1) to three (3) years for a subsequent offender. This also will come at the driver’s own expense.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help if You are Charged with Drunk Driving or Refusal

A conviction on DWI/DUI and refusal charges can mean serious penalties – jail time, heavy fines, and loss of license, that can seriously affect your ability to care and provide for yourself or your loved ones. Defending against these charges can also be very complicated. If you or someone you know is arrested for refusing to submit to a breath test, it is important to have a lawyer who knows how to help. 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 1-732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Breathalyzer Tests, Criminal Law, Drunk Driving, DWI - DUI

New Jersey DUI Attorney Discusses the Field Sobriety Vision Test, Also Known as the Horizontal Gaze Nystagmus Test

April 25, 2017 by

Horizontal Gaze Nystagmus TestIf you are pulled over and arrested for DWI in New Jersey, the police have a few options for proving that you were driving under the influence of alcohol or drugs. Two of the things that police officers may do is (1) conduct a field sobriety test, or (2) use an official breathalyzer test, which is meant to determine scientifically if your blood alcohol content (BAC) is over the legal limit of .08%. Because the government is required to adhere to specific and complicated guidelines for administering and maintaining BAC tests and records, it is important that you retain an experienced attorney if you are ever arrested for a DUI. A knowledgeable DUI/DWI attorney will be able to review the records and may be able to have the BAC evidence thrown out so that it cannot be used against you.

If the BAC evidence is thrown out, or otherwise compromised or excluded, then the government will be required to rely on other evidence to prove that you were driving under the influence of alcohol or drugs, such as the field sobriety test. A police officer’s observations and notes regarding how a driver acts or appears, when combined with evidence of the officer’s experience in assessing impairment, can be used to convict a driver of operating a motor vehicle under the influence of drugs or alcohol.

Horizontal Gaze Nystagmus Test

In New Jersey, police officers may ask a driver to do a number of different exercises in an attempt to determine if the person is intoxicated, under the influence of any substances, or otherwise impaired, including standing on one leg, reciting the alphabet backwards, walking in a straight line, or following the police officer’s finger with the person’s eyes. Not all of the tests are admissible in court. The vision test, where a driver is asked to move his or her eyes from side to side, is considered scientifically reliable under the law. This is called the Horizontal Gaze Nystagmus (HGN) test.

Nystagmus is a term to describe fast, uncontrollable movements of the eyes – sometimes also referred to as dancing eyes. Impairment due to alcohol and the use of certain drugs can cause involuntary nystagmus. Accordingly, in the 1970’s and 1980’s, the National Highway Traffic Safety Administration (NHTSA) performed studies to determine if the HGN could be used to reliably determine if a person was operating a car while intoxicated or impaired by drugs, and the studies found the HGN test is 77% accurate in determining whether a person has a 0.10 BAC or more.

What Police Officers Are Looking for When Performing the Test

Police officers are provided with some training in how to perform an HGN test, including what signs of impairment to look for. The guidelines suggest that a police officer is checking for equal pupil size and whether the eyes are jerking involuntarily from side to side while at rest or while tracking an object from side to side. Three specific “clues” that officers are trained to look for include:

  1. The lack of smooth movement from side to side – bouncing rather than rolling smoothly.
  2. Distinct and sustained nystagmus when the eyes are held at maximum deviation and held for a minimum of four seconds.
  3. Onset of nystagmus when the eyes have moved less than 45 degrees to the side.

How a Lawyer May Challenge the Horizontal Gaze Nystagmus Test

Scientific and medical experts have concerns that the administration of the HGN test by police officers may be unreliable because these officers are not ophthalmologist, trained in the detection of eye movements and or eye pathologies. Some experts have also suggested that the NHTSA standards for performing the HGN test could lead to false results. One independent study concluded that, in a controlled laboratory test, police officers were wrong 41% of the time about whether a person with a .10% BAC experienced HGN.

Similarly, HGN can be caused by a number of other things, including injury, tiredness, illness, or medical conditions. In the case of Schultz v. State, a case from Maryland, the court recognized at least 38 medical conditions unrelated to alcohol that can cause HGN, including the flu, consumption of excessive amounts of caffeine, head trauma, some prescription drugs, and exposure to certain chemicals or toxins.

Because a police officer is looking at your behavior, appearance, and how you perform on these tests, your performance on any field sobriety test, as well as your ability to speak to the police officer and answer questions, can help in your defense against a DUI/DWI conviction. At the end of the day, these tests are not perfect and subject to human error. 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 DUI/DWI Attorney Edward M. Janzekovich Can Help if You Are Arrested for Drunk Driving

An arrest for driving under the influence of alcohol or drugs can have life-changing consequences for any driver. Such a charge, and possible trial, can also be extremely complicated, especially when specific tests or scientific evidence is involved. 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: Criminal Law, Drugged Driving, Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, Uncategorized 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: ,

Whether You Are Functional or Coordinated During a Sobriety Test is Not a Defense Against a BAC Over 0.08%

August 31, 2016 by

Drunk driving breath test

Some people have the ability to have a few drinks and still be relatively well-coordinated – sometimes referred to as being a “functional drunk.” Such individuals may even be proud of the fact that they can be drunk and still perform regular activities. This ability may even extend to the person’s performance on a field sobriety test, if he or she is pulled over. Regardless of whether or not a person is completely successful on a field sobriety test, however, his or her performance will not be admissible to rebut a blood alcohol content (BAC) reading of over .08%. For that reason, it is important that you never drive drunk, even if you think you are okay and it won’t affect your driving at all.

Field Sobriety Test and Video Evidence

If you are pulled over for and suspected of drunk driving in New Jersey, one of the things a police officer will probably do is ask you to perform a series of movements that make up a field sobriety test – including walking in a straight line, following a flashlight with your eyes, holding out your arms and touching your nose with one finger, or counting while standing on one foot. It is also very likely that the officer will make a video recording of your performance on this test.

Because you can be on video every time that you are pulled over, it is important to remain polite and compliant, in case the video is later viewed by a judge or admitted as evidence in a trial. One of the ways the state may attempt to prove that you were driving drunk is by presenting evidence that you failed your field sobriety tests. Therefore, your performance on any field sobriety test, as well as your ability to speak to the police officer and answer questions, can help in your defense against a DUI/DWI conviction.

Field Sobriety Test Performance Does Not Rebut a BAC of 0.08% or Greater

At the same time, in the case of State v. Tischio, the Court concluded that a breathalyzer test result of 0.08% or greater, within a reasonably period of time after the operation of a vehicle or arrest, is conclusive proof of guilt. This means that a properly taken BAC of 0.08% or greater is a per se violation of New Jersey’s law against drunk driving, and this cannot be rebutted through other evidence.

Therefore, even if you perform really well on a field sobriety test – including if you manage to keep your balance when standing on one foot, walk in a straight line perfectly, and otherwise have no trouble speaking with a police officer and answering questions – you can still be convicted of a DWI/DUI. This is because the state can prove that you were operating a vehicle under the influence of alcohol two different ways – through BAC evidence and through evidence of your inability to pass a field sobriety test. Any evidence of how you performed on a field sobriety test cannot be admitted to dispute the BAC reading, which can only be challenged through other defenses that are specific to how and when the breathalyzer or BAC test was performed.

At the same time, a BAC reading is not always perfect. There may be ways to challenge breathalyzer test results and have them excluded, at which point your performance on a field sobriety test can become very important. For that reason, it is especially important to always consult an experienced DWI/DUI lawyer if you are pulled over and charged with drunk driving. An DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

Contact New Jersey Drunk Driving Attorney Edward M. Janzekovich

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced 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: Criminal Law, Drunk Driving, DWI - DUI, Field Sobriety Tests

New Jersey Drunk Driving Lawyer – Underage DUI-DWI

May 26, 2016 by

The legal drinking age in the state of New Jersey is 21, and the minimum legal driving age is 17. What happens if an underage drinker gets behind the wheel of a car in New Jersey? The penalties and collateral consequences can be devastating. Because underage drinkers cause a disproportionate number of alcohol-related auto fatalities, the state has enacted stricter laws and harsher penalties for drunk drivers under the age of 21.

New Jersey is a no-tolerance state. If a minor is pulled over under suspicion of drunk driving, a Breathalyzer test will be administered.  However, if the test results indicate that they have a blood alcohol content (BAC) of .01 percent or higher, they can be charged with a DUI. For drivers over the age of 21, driving with a BAC of .01 percent is not in itself illegal—in order to be charged with DUI an adult generally must have a BAC of .08 percent or higher.

Underage Drinkers May Face Additional Related Charges

In addition to being charged with a DUI, underage drinkers may be charged with:

  • Being a minor in possession of alcohol
  • Soliciting alcohol
  • Possession of false identification
  • Moving and vehicle maintenance violations
  • Distributing alcohol to other minors if there were underage intoxicated passengers in the car

Penalties

Drivers under the age of 21 who are convicted of driving under the influence face:

  • A 30 to 90-day driver’s license suspension (for high rate DWI’s with a BAC of .10 or higher, an underage drinker could lose their license for up to a year)
  • 15 to 30 days mandatory community service
  • Mandatory participation in an Intoxicated Driver Resource Center (this involves a detainment period of between 12 and 48 hours)
  • If under the age of 17 and unlicensed, a 30 to 90 delay in processing your driver’s license
  • Up to 30 days in jail
  • Fines between $250 and $500 depending on the driver’s BAC
  • Surcharges in excess of $3,500

Collateral Consequences

If you are convicted of an underage DWI, you may have difficulty achieving your educational goals. Colleges and universities perform background checks, and a conviction on your record could be cause for an admission or scholarship denial.

An underage DWI may also pop up on an employment background check. In today’s market, where there are many quality applicants competing for every job, a DWI on your record could prevent you from getting work.

Car insurance companies are known to terminate coverage to minors convicted of driving under the influence, or refuse to renew. If coverage is offered, the rates tend to be very high due to the risk the insurer must assume. Some companies raise the monthly premium by $100-$300 a month for the next three to five years.

Underage drivers may also need to submit an SR-22 certificate to reinstate their license after a period of suspension.  This forms tells the DMV that a driver is insured, and many companies furnish this form to the DMV for their insureds.

Defending Against Underage DWI Charges

There is an array of defenses available to minors charged with DWI. One of the most commonly employed defenses is that many natural and artificial substances can cause a breath test to register a BAC reading of .01 percent.

There are also defenses available based on your right to be free from unreasonable searches and seizures under the Fourth Amendment. If your constitutional rights were violated, any illegally obtained evidence cannot be used against you at trial.

New Jersey DUI Lawyer Edward M. Janzekovich Defends Minors Accused of Driving While Intoxicated

If you or your child has been charged with an underage DUI, reputable New Jersey DWI lawyer Edward M. Janzekovich can help. We understand the stress you are under as you face unknown, potentially life altering consequences.  You do not need to face these battles alone.  We strive to ease our clients’ minds by thoroughly explaining the legal process, and our goal is always to get our clients’ cases dismissed altogether.

To schedule your confidential consultation today, call us at 732-257-1137 or contact us online today. We represent clients throughout New Jersey, including Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

 

Filed Under: Criminal Law, Drunk Driving, DWI - DUI, Underage DUI Tagged With: , , , , , , , , , , , ,

New Jersey DWI – DUI Lawyer – Boating Under the Influence (BUI)

May 17, 2016 by

Memorial Day is just around the corner, and many people in New Jersey will be celebrating the unofficial kick off to summer by doing some recreational boating or other activities on the water.  New Jersey is becoming increasingly crowded, meaning residents and tourists are flocking to our waterways in record numbers, increasing the chances of boating incidents.

The New Jersey State Police and the United States Coast Guard are the two law enforcement agencies that combat intoxicated boating in New Jersey.  If you are stopped for suspicion of BUI, law enforcement will require the boat captain to take the same sobriety test as someone who has been stopped in their car.  The captain may also have to submit to a Breathalyzer test to see if their blood alcohol content (BAC) is above the legal limit.  When the operator of a vessel is asked to take a Breathalyzer test, they are presumed to have consented to the test by accepting their boating license.  This is known as implied consent.  Refusing to take the Breathalyzer test will result in an additional charge for refusing the test, and you may still be charged with a BUI.

The law that governs intoxicated boating in New Jersey, N.J.S.A. 12:7-46, was enacted in 1995.  Prior to that time, careless, reckless, or intoxicated boaters could be re-licensed by simply paying a fine and servicing a period of license suspension.  Under the new law, offenders must also take a boating safety course as a condition of re-licensure.

The Legislature modeled the intoxicated boating laws on the existing drunk driving statutes.  In order to be convicted of a boating DWI, the prosecutor must prove three elements:

  • The suspect must have been operating a “vessel” (a water vessel that is 12 feet or more);
  • They must have been operating it in New Jersey waters; and
  • They must have been operating it under the influence of an intoxicating liquor, a narcotic, hallucinogenic or habit-producing drug; this is often proven by establishing that the vessel’s operator had a BAC of .08 percent or greater.

In addition, a person can be convicted of a BUI if they permit another person who is under the influence of drugs or has a BAC of .08 percent or greater to operate a vessel.  If an individual is operating a commercial vessel, the lower BAC of .04 percent is considered the legal limit.

Penalties for BUI

If you are convicted of a BUI, not only will you lose your boating license, but you will also lose your regular driver’s license.  The first time an individual is convicted of boating while intoxicated, their boating license will be revoked for one year, their driver’s license will be suspended for three months, and they will face a fine of between $250 and $400.  Court costs of $33 may be imposed, as well as a $50 assessment for the Victims of Crime Compensation Board (VCCB).  These fines will be even greater if a person had a BAC of .10 percent or higher.  First time offenders must also complete a program of alcohol education at the Intoxicated Driver Resource Center (IDRC), and take a boating safety course

For a second BUI offense, a person will lose their boating license for two years, and their driver’s license for six months.  They will also face two to 90 days in jail, a fine of between $500 and $1000, and costs and fees.  Convicted defendants must also serve 30 days of community service, and complete a rehabilitation program at the IDRC.

For third and subsequent offenses, a person will lose their boating license for ten years and their driver’s license for two full years.  In addition, a third BUI will result in a mandatory 180-day jail term.  Community service may be substituted for part of this term.  Third time offenders must pay a $1000 fine plus costs and fees, complete a boating safety course and a rehabilitation program at the IDRC.

New Jersey Boating While Intoxicated Lawyer Edward M. Janzekovich Defends Individuals Charged With a BUI

Getting a BUI is a serious matter that can result in crippling fines and potential jail time.  A conviction for BUI will also count as a prior offense if you are subsequently charged with additional DWI offenses.  At the Law Office of Edward M. Janzekovich, our goal is always to help our clients avoid a conviction.  To discuss your case, call us at 732-257-1137 or contact us online today.  We represent clients throughout New Jersey, including Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Filed Under: Boating Under the Influence (BUI), Criminal Law, Drunk Driving, DWI - DUI Tagged With: , , , , , , , , , , , , ,

New Jersey DUI Lawyer – Supreme Court Questions Whether Drivers Can Be Forced to Take a Breathalyzer Test Without a Warrant

May 12, 2016 by

Last month, the United States Supreme Court addressed whether police can require drivers to take a “deep-lung” breath test without a search warrant. Three cases out of Minnesota and North Dakota were joined and brought before the Court. These states have laws that make it a crime for drivers to refuse to take a breathalyzer, urine, or blood test. Eleven other states have similar laws, including Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia. A majority of the justices questioned whether these laws criminalizing refusal are constitutional, in light of an individual’s Fourth Amendment right to be free from unreasonable searches and seizures.

Generally speaking, the police cannot search a driver or their car after an arrest without first getting a search warrant, unless it is for their own personal safety or to preserve evidence. In 2013, the Supreme Court ruled that police cannot conduct blood tests for drunken driving without first obtaining a warrant. However, some justices remain hesitant to apply the same rule to the breathalyzer test, because it is less intrusive than drawing blood.

Previously in North Dakota, refusal to submit to a chemical test carried only civil penalties, such as the suspension or revocation of one’s license. However in 2013, North Dakota lawmakers passed legislation to make penalties for drunk driving offenses more severe—in part by punishing a refusal to take a breathalyzer test in the same manner as it punishes the crime of driving under the influence.

The groups backing the states’ laws, including Mothers Against Drunk Driving (MADD), have argued that when a person applies for a driver’s license, they give their implied consent to be subjected to a chemical test in the event that they are arrested for suspected drunk driving.

However, several groups backing the defendants, including the American Civil Liberties Union (ACLU) and the DUI Defense Lawyers Association (DDLA), have argued that the government cannot criminalize conduct protected by the Fourth Amendment. One cannot truly give “implied consent” to take a breathalyzer test when they get their license if they know that they will face criminal sanctions for refusing to take the test. The DDLA argued that there are better ways to deter drunk driving, including creating an electronic warrant system, setting up sobriety checkpoints, providing alcohol abuse treatment, and requiring the use of ignition interlock devices for convicted drunk drivers.

So how did the justices come down on the issue? Justice Samuel Alito was the only justice who seemed to be strongly in favor of criminalizing refusal, and he emphasized that breathalyzer tests are only a minimal intrusion. He expressed that the only reason people don’t want to submit to a breathalyzer test is because they don’t want their blood alcohol measured, it is not that they object to blowing into a straw. Justice Kagan seemed to agree with this line of reasoning, noting that police have an interest in testing a driver’s breath as quickly as possible, before their blood alcohol content (BAC) goes down.

Ultimately, the states were unable to come up with a persuasive reason why police cannot secure a warrant while transporting suspects to the police station or hospital for testing. Forty states now utilize electronic warrant systems.

Although it is not a crime to refuse to take a breathalyzer test in New Jersey, there are harsh civil penalties, including fines, motor vehicles surcharges, a long suspension of driving privileges and special sentencing enhancements if the refusal occurs within a school zone. A refusal can also be used to draw an inference of guilt in a DUI trial. If you are pulled over in New Jersey for a suspected DUI, the police can detain you and bring you to a hospital where staff may draw blood.

New Jersey DUI/DWI Lawyer Edward M. Janzekovich Represents Drivers Who Have Refused Chemical Testing

If you were arrested for drunk driving and refused to submit to chemical testing, you are likely facing steep penalties. In addition to a DWI charge, you are probably also facing penalties for refusing to take the breathalyzer test. To speak to an experienced New Jersey DUI lawyer and begin building your defense, call the Law Office of Edward M. Janzekovich at 732-257-1137 or contact us online today. We represent clients throughout New Jersey, including Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

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New Jersey DUI Lawyer Discusses the Use of Video Evidence in DWI Cases

March 29, 2016 by

If you are pulled over for suspected drunk driving in New Jersey, it is very likely that the police will make a video recording.  Remember that your words and actions will be videotaped from the moment an officer turns on the police car’s lights.  Even if you feel that the stop is not justified, always remain polite and compliant because a judge may later view the tape.  Although it might seem like video of a DWI arrest will seal the case against you, video evidence can actually be helpful to your defense—especially if your rights have been violated or the officers exaggerated their observations when filling out their reports.

When Are Suspects Recorded?

Currently, the New Jersey State Police record both the motor vehicle stop as well as the subsequent roadside investigation (including the field sobriety tests).  The State Police do not currently videotape suspects taking breathalyzer tests while back in custody at the State Police barracks.

On March 1, 2015, a new law took effect requiring all newly purchased municipal police cars to be equipped with mobile video recording systems.  The requirement applies to police cars primarily used for traffic stops.  Many municipal police departments record the initial stop, the roadside investigation and some even record the administration of the breathalyzer test back at the station.

Mobile Video Recording (MVR) Technology

MVR devices coordinate the operation of a video camera mounted in the police car with the overhead police lights on the top of the police car.  When the lights are turned on to pull a car over, the video starts recording.  The video is electronically time and date stamped.  Police officers wear portable remote microphones to record audio of your exchange.  Anything you say to the police will be a part of that video record.  Consequently, if you are pulled over under suspicion of drunk driving, you should not make any statements to the police until you have spoken to an experienced New Jersey DWI lawyer (except basic information like your name, address, date of birth, etc.)  You may think you are helping your case, but you cannot anticipate how your words will later be used against you in court.

Video recording systems in older police stations tend to use dated technology.  The quality of the video and sound from these older wall-mounted devices varies greatly from precinct to precinct.  Some recordings may be so poor as to be completely indecipherable.

Does the Judge Always See The Video?

The judge will not see the video unless either your attorney or the prosecutor introduces it as evidence in your trial.  In order to be admitted, the arresting officer and/or officer who administered the breathalyzer must also testify.  The judge cannot view the video of his or her own accord.

There are objections that can be raised to prevent the judge from viewing the tape or admitting it as evidence.  Most often, a defendant will object that the recording contains statements that constitute admissions, on grounds that they have not been advised of their right to remain silent.  Even if these parts of the video are redacted, other parts of the recording can still be admitted (for example video of the defendant stumbling while being fingerprinted or slurring words).

How Can the Video Help Me?

In order to affect a valid traffic stop, the police need a justifiable reason to pull you over—otherwise all the evidence subsequently gathered must be excluded at your trial.  If the police claim to have pulled you over because you were swerving erratically, but the video shows that you were not, this may be grounds for dismissal of your case.

The video recording should also capture the field sobriety tests.  If, for example, you failed the “standing on one leg” test because it was administered on challenging terrain, you may receive the benefit of the doubt in court.

If a police officer requests that a driver take a breathalyzer test, the driver cannot legally refuse.  The officer is required to read from a prepared statement when asking the driver to take the test.  If there is a dispute as to whether a driver actually refused to take the test, a video recording can clear this up.

Also, if an officer does not adhere to the required 20-minute observation period prior to administering a breathalyzer, the video can prove this, and it could be grounds for an acquittal or dismissal.

If a recording is lost or taped over, this may constitute a due process violation that requires the dismissal of your case.

New Jersey DWI Lawyer Edward M. Janzekovich Knows How to Use Video Recordings to his Clients’ Advantage

If you have been arrested for drunk driving in New Jersey, you should begin crafting your defense right away. New Jersey DUI attorney Edward M. Janzekovich is known throughout New Jersey for consistently getting positive results for his clients. To learn more about how we can help, call us at 732-257-1137 or contact us online today. We serve clients throughout New Jersey including Monmouth County, Middlesex County, and Ocean County.

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New Jersey DWI/DUI Lawyer: What Happens If I Am Convicted of Drunk Driving in Another State?

March 8, 2016 by

Getting arrested and facing charges for drunk driving can be a very frightening and intimidating experience. You do not know what to expect. These feelings of anxiety may increase if you are arrested out-of-state and far from your home and family. If you are a New Jersey resident, in addition to having to deal with the charges in the state where you were convicted you will also face serious consequences in New Jersey.

Once your out-of-state DUI has been reported, you will probably have your license suspended in New Jersey and face expensive surcharges from the New Jersey Motor Vehicle Commission (MVC). In addition, if you are convicted of drunk driving in New Jersey any time during the ten years following your out-of-state conviction, you will face enhanced penalties in New Jersey as a repeat offender.

Suspension of Your Drivers License

Once you are convicted of DUI out-of-state, the record of your conviction will be reported to the Chief Administrator of the MVC through the Interstate Drivers License Compact (the Compact). The Compact is an interstate agreement between 45 states to exchange information about license suspensions and traffic violations, including DUI offenses. The Compact’s motto is “One Driver, One License, One Record.” The only five states that do not participate in the Compact are Massachusetts, Michigan, Wisconsin, Georgia and Tennessee; all other states, including the District of Columbia, participate.

When you are convicted in a state that participates in the Compact, your driving record will be affected just as if you had committed the offense in New Jersey. Out-of-state non-moving violations like parking tickets, tinted windows or a loud exhaust pipe will not be reported to the New Jersey MVC. But serious charges like a DWI/DUI will be reported.

For example, if you are convicted of a DWI/DUI in New York or Pennsylvania, your license will be suspended in New Jersey for:

  • 180 days if it is your first DWI/DUI offense
  • 2 years if it is your second DWI/DUI offense
  • 10 years if it is your third (or greater) DWI/DUI offense

All prior convictions (whether out-of-state or in New Jersey) count as prior offenses for determining how long your license will be administratively suspended.

Motor Vehicle Surcharges

Surcharges are fines assessed by the New Jersey Surcharge Violation System. If you have too many points on your license for moving violations, or if you are convicted of a DWI, you are liable for a surcharge in addition to any court fines and penalties you have to pay in the state where you were convicted. Once your out-of-state conviction is reported to the MVC, you will have to pay $1000 per year for the next three years. If the conviction is your second within three years, or your third offense, you will have to pay $1500 per year for the next three years.

Sentencing Enhancements

Violation of any law that is “substantially similar” to New Jersey’s own DWI statute will constitute a prior conviction if you are later convicted of a DWI in New Jersey. This is true even if the state where you were convicted is not a signatory to the Compact.

New Jersey DWI – DUI Lawyer Edward M. Janzekovich Represents People With Prior Drunk Driving Convictions

If you have been convicted of drunk driving in another state, and are facing new charges in New Jersey, trusted DWI lawyer Edward M. Janzekovich is prepared to defend you. We have a successful track record of defending clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County, including Union, Dover, Brick, Jackson, Wall, Woodbridge, East Brunswick, Evesham, Howell, Robbinsville, Bound Brook, Neptune, Hamilton, Linden City, Bridgewater and Tinton Falls. To take charge of your situation, call us at 732-257-1137 or contact us online today.

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Disclaimer : The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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