What You Need to Know About DWI

At my office, we get lots of questions from our clients and potential clients about DWI. On this page, I share some general information and some of the most common questions that I hear at the office. Hopefully, this will help you as you move forward with the DWI process. If you still have questions, please contact my office for further assistance.


A court must be able to infer from the evidence that person intended to move the motor vehicle. Operation of a motor vehicle occurs when:

  • A Person Has Control of That Vehicle
  • There is Intent to Drive, Along With Actions to Put the Vehicle in Motion
  • There is the Possibility of Motion


There is no statutory definition of control. Rather, it has been defined by case law to occur when one places him/herself in the driver’s seat of a vehicle. The car does not need to be operational, they keys do not need to be in the ignition.

Intent to Drive

A court must be able to infer from the evidence that person intended to move the motor vehicle. Intent can be inferred by physical movements to operate the vehicle, such as putting the key in the ignition, turning on the lights, putting a seatbelt on, adjusting mirrors, etc. Intent, such a person sleeping in a car, even with the keys in the ignition, will NOT always be found merely because a person will operate the motor vehicle at some future date.

Possibility of Motion

In addition to control and intent to operate, the there must be a possibility of movement of the motor vehicle. Possibility of movement does not necessarily require the car be moved by it’s own power. In State v. Jeanette, the court held that it does not matter whether a vehicle is powered by “engine or gravity". In State v. Dannemiller, the court found that a car, which was out of gas on the side of the road, didn’t get there alone.

“But nobody saw me drive, I was home free!”

Operation can be proven in three ways.

Direct Observation

This occurs when the police officer sees the driving conduct.

Circumstantial Evidence

The police don’t actually see the driving conduct, Rather, there is some other evidence to infer operation


This is when you have made statements admitting to operation.

Operation issues are rare. Tackling the nuanced issues of control, intent and circumstantial evidence can be difficult even for the seasoned lawyer. An operation defense could be overlooked as many defense attorneys tend to focus more on the keys in the ignition, rather than whether in the totality of the circumstances, the defendant intended to drive. Therefore, it is important to hire a New Jersey DWI Lawyer who understands the various components that make up operation and how to raise them at trial. The lawyers at the Hernandez Law Firm, are trained in all aspects of DWI law, undergo refresher training annually to stay current on new case law as-well-as existing case law, and we have the technical training to properly defend DWI and Refusal charges throughout New Jersey.

Reasonable Articulable Suspicion in NJ DWI Stop

It is against the law in New Jersey and in every state across the country for police officers to stop and detain motorists at will. Thanks to the Supreme Court ruling in the case of Delaware v. Prouse, police officers are required to have a reasonable and articulable suspicion that a motor vehicle violation or crime is occurring or has occurred before pulling a driver over.

Police can establish reasonable articulable suspicion in one of three ways:
Equipment violation, such as a burnt out taillight
Moving violation, such as speeding or failing to maintain your lane
Registration violation, including an expired tag on your vehicle
Once you have been pulled over, the officer will look for other pieces of evidence to justify beginning a DWI investigation, including:
Odor of Alcohol
Presence of Open Containers
Watery or Bloodshot Eyes
Slurred Speech

Although officers are required by law to establish reasonable articulable suspicion before making any traffic stop, they do not always do so.

New Jersey DWI State v. Baluski

Recently, a ruling was published in a case that I have been fighting for over a year. My client was arrested for DWI in Stafford Township and was taken to the Bass River police barracks for testing.

Any type of testing, whether it is blood or breath testing had to follow certain procedures to be valid. For breath testing, the subject needs to be under strict observation for at least 20 minutes before a test can be conducted. In this case, I requested to inspect the breath testing room in order to determine whether it was physically possible to observe the defendant for the requisite twenty minute period. The Municipal Court denied this request. I then proceeded to appeal this decision to the Law Division, which reversed the Municipal Court decision. However, the Attorney General appealed to the Appellate Division which held defense attorney may have access to the breath testing room only with a showing of reasonable need.

So, in short, I was successful in getting attorney’s access to the breath testing room. I feel this is an important precedent which allows the defense to ensure that the proper testing procedures are being following. If the proper procedures are not being followed then the test results maybe invalidated. This is very important because in a DWI case, the key piece of evidence is the forensic report. We need to ensure that these reports are indeed valid so that innocent people don’t wind up getting convicted.

New Jersey Traffic Stop & DWIs

Except in cases where equal protection issues are implicated, an improper motivation for a DWI stop does not invalidate the stop itself. The standard is that the police officer must have an “objectively reasonable basis” for making the stop, such as a traffic violation or something similar. Whether or not there was a pretext for the stop, such as the desire to look for drugs, is irrelevant so long as the officer had an objectively reasonable basis for the stop. If you were stopped and cited with a DWI, call a New Jersey DWI lawyer to discuss your case.

There are nearly an unlimited number of reasons police give for making a stop and which serve as their “objectively reasonable basis.” There are, however, a few regularly occurring reasons which police furnish. One such example is weaving within the lane while driving. Though this is a common basis for a stop, courts throughout the country have ruled differently regarding its propriety. If your DWI stop was the result of weaving within the lane, a qualified and professional New Jersey DWI lawyer may be able to support your defense.

The general rule is that weaving within the lane provides a reasonable basis to stop a vehicle on suspicion of driving under the influence of alcohol, so long as the weaving continues for a substantial distance. What constitutes a substantial distance, however, will depend on the court.

In a California case, the court found that three-quarters of a mile was a substantial distance, partially because the weaving was continuous. A Texas case, however, found that weaving within the lane between two and seven times over a mile and a half was insufficient to detain the car. This was particularly true because, in this case, the police officer was uncertain of the number of times the driver weaved.

What Should Happen During a DWI Stop in New Jersey?

The first step in a DWI case is the initial stop by the police officer. In order to pull you over, the officer must have reasonable articulable suspicion to do so. An officer may legally pull you over for a:
Moving Violation
Registration Violation
Equipment Violation
How Long Can I Be Stopped?
Once you have been pulled over, the police officer can only detain you for as long as it takes to complete the purpose of the stop. For example, if you were stopped for speeding, the stop should take no longer than the time necessary to write your ticket.

Beginning a DWI Investigation

You may be detained longer if the officer finds evidence of other illegal activity having occurred, such as driving while intoxicated. In order to keep you and begin a DWI investigation, the officer must establish probable cause by observing evidence such as:

Probable Cause
Odor of AlcoholOpen Containers in the VehicleSlurred SpeechWatery or Bloodshot Eyes

The officer will then ask if you have been drinking. If you answer yes, it is likely that you will then be asked to step out of the vehicle and submit to field sobriety tests.

New Jersey DWI Actual Physical Control

You may be surprised to learn that you can be charged with DWI in New Jersey without actually driving. Under the law, you only have to be in actual physical control of a vehicle to be placed under arrest.

In order to be in actual physical control, you simply have to be in a vehicle and have the ability to drive; basically, if you have the keys and/or if the vehicle is on, you could be considered in actual physical control.

For example, if you drink and then decide to “sleep it off” before driving home on a cold night but turn your car on so that the heater will run, you would be in actual physical control. Even having the keys in the ignition or simply inside the car could be enough for an officer to arrest you.

Actual physical control can be difficult for the prosecution to prove. With the right defense strategy, an experienced defense attorney may be able to challenge this claim and increase the chances of a favorable outcome in your case.

DWI & Warrants in New Jersey

The Fourth Amendment of the United States Constitution prohibits illegal search and seizure from law enforcement. Basically, this means that police officers must have a warrant to search your private property.

However, there are some circumstances where police do not need a warrant at all. These so called “exigent circumstances” once included DWI investigations in New Jersey. However, the laws in our state are changing.

State v. Ravotto

In 2001, the New Jersey Supreme Court ordered in the case of State v. Ravotto that police could take blood from a suspected drunk driver using “reasonable force.”

Under the law, reasonable force varies, depending on the circumstances of the stop including:
The severity of the crime
If the suspect is threatening the officer's saftey or the safety of others
If the suspect is attmepting to evade or resist arrest

Forced Blood Draws in New Jersey

New Jersey is among many other states with an implied consent law on the books. Under this law, drivers who are pulled over and suspected of drunk driving will face serious license-related penalties if they refuse to submit to a breath test of their blood alcohol content.

There is no penalty in New Jersey for refusing to submit to a blood test. However, until 2013, it was legal for officers to forcibly draw a person’s blood and for the results of that test to be used against the accused drunk driver in court. You should know that officers are now required to obtain a warrant before forcibly taking your blood after a DWI arrest.

If your blood was forcibly taken after you were arrested for DWI, there are ways an experienced defense attorney can attack both the draw and the results of the test.

Warrants Now Required

In 2013, the United States Supreme Court ruled in the case of Missouri v. McNeely that forced blood draws are a violation of the Fourth Amendment. In 2015, a ruling in a New Jersey appellate court in the case of State v. Majao began the process of revising New Jersey’s stance on warrantless blood draws.

It is absolutely possible to mount a successful defense against a forced blood draw in a DWI case. Both the draw and the results can be challenged.

New Jersey DWI & Police Body Cameras

Body cameras are becoming more and more common with law enforcement agencies across the country. Thousands of police officers in New Jersey wear these small, high-tech cameras every day, capturing important evidence that can be crucial in some DWI cases.

Why Body Cameras Work

First and foremost, body cameras offer a level of safety for both the officer and the suspected drunk driver. With traditional dash-mounted cameras, field sobriety tests had to be conducted in front of the officer’s car. In the event of an oncoming car hitting the police vehicle, both the suspect and the officer could have sustained serious injuries. With body cameras, the officer can take the suspect to a safe location of the officer’s choosing and still capture the field sobriety test on film.

Not only are body cameras convenient, they also produce better quality video and audio than traditional dash-cameras. It is easy to see the way a suspect speaks and acts on video captured from these cameras at the exact same vantage point as the police officer.


Of course, there are limitations to body cameras. They do not always produce very high-quality video in dark or low-light situations. And if the officer is not facing the subject exactly during the field sobriety test, some of the suspect’s performance may not be captured.

However, some video of a stop and arrest is better than no video at all as it helps remove doubt regarding subjective pieces of the DWI investigation. For example, if the officer said the defendant was stumbling and the defendant said that she was not, the video will show what really happened.

Video Evidence & DWI Defense

Video can be an important piece of evidence at trial. It can also be helpful in avoiding trial altogether. Good video evidence may help determine whether or not the state has a strong enough case to proceed with trial.

Intoxicated Driver Resource Center (IRDC)

Because drunk driving is a motor vehicle violation and not a crime in New Jersey, there is no drug court or alcohol court for DWI. However, all people convicted of a drunk driving must attend a course at the Intoxicated Driver Resource Center, or the IDRC.

First offenders must attend at least a 12-hour Intoxicated Driver Program (IDP) while second offenders are required to attend for 48 hours. During this time, the offender will be assessed to determine his or her level of alcohol dependency. The IDRC will make further treatment recommendations, which must be completed in order for the offender to have his or her license reinstated. This treatment will last for a minimum of 16 weeks.

The IDP also includes courses on Alcohol and Highway Safety Education.

IRDC Costs

Mandatory attendance at the IDRC is pricey—and must be paid for by the offender. Every participant is required to pay a $100 attendance fee as well as a $100 license restoration fee to the Motor Vehicle Commission or MVC. An additional fee must be paid to the IDRC:

First OffendersSecond Offenders


If you are sentenced to attend the IDP and do not show up or do not comply with treatment recommendations, your actions will be reported to the MVC. It is important to know that the IDP will make a recommendation to the MVC regarding the restoration of your license, based on your participation in and completion of the program.

New Jersey DWI Arrests

There are various scenarios that end with a DWI arrest. A situation that has become far more common over the last several years starts with a cell phone call from an anonymous “tipster” alerting the police of a suspected drunk driver on the road. In order for this to be a valid arrest, there are evidentiary and legal requirements. Your New Jersey DWI lawyer will be able to analyze the facts surrounding this “tipster” situation to determine whether it was a legal stop.

Legally speaking, the police can pull up to a vehicle identified by a tipster as a drunk driver and pull it over. By law, the police must have some information that would otherwise justify a drunk driving stop, such as erratic driving, or the violation of some traffic law that, in and of itself, would justify the stop.

However, there are some cases situations where the police officer has pulled over and arrested an individual for drunk driving based on an anonymous without observing any traffic violations or signs of drunk driving. In such cases, the court has applied four factors to justify its holding that the DWI is valid: 1) the intoxicated driver posed a great risk to the public; 2) it is rare for people to make a false drunk driving report; 3) being pulled over by the police is not a big intrusion; and 4) the officer must believe the reliability of the tip.

This is where the representation of an experienced New Jersey DWI lawyer will be invaluable. Your New Jersey DWI lawyer will do a detailed evaluation of your case to determine whether the factors above apply to your particular case. If not, then your charges will successfully be dropped.

Municipal Court

With over 500 Municipal Courts in New Jersey, it is no wonder the Municipal Court system has been described as the most important courts in the State. Most citizens will experience the criminal justice system through the Municipal Court. These courts have jurisdiction to hear, among other things, traffic violations, including DWI, petty disorderly and disorderly persons offenses.

Each municipal court has at least one judge (some courts have multiple). Most municipal court judges are part-time judges, who must balance their busy private law practices with their judicial duties. These judges are bound by the rules of judicial conduct and must follow court rules, evidence rules, and case law precedent. These judges are NOT experts and must often rely on the parties appearing before them to argue legal, scientific, constitutional, evidentiary, and procedural issues. Some of these judges have had little no municipal court or criminal court experience. The Municipal Court Judge has the authority to impose fines, suspend licenses, and impose jail sentences, along with other statutory penalties.

Municipal Court Fact #1Municipal Court Fact #2
There is no right to a jury trial in municipal court. The case will be decided by a judge.Strictly enforced rules prohibit most plea bargaining of DWI and Drug Possession/Paraphernalia charges.
Defendants who appear in Municipal Court have the following rights:
The Right to be Informed of the Charge Against Them
The Right to Remain Silent
The Right to an Attorney
The Right to Trial, where the state must prove each element of the offense beyond a Reasonable Doubt
The Right to Confront Witnesses through Cross-Examination
The Right to Call Witnesses
The Right to a Speedy Trial

The key to success in the Municipal Court System is to have an experienced attorney with you who knows how the system works and how to get results.

No Plea Bargains in New Jersey

In New Jersey, if you have been charged with DWI, you will either be found guilty or not guilty. The law does not allow plea bargaining of any kind for DWI charges.

However in some cases, the prosecutor may move to have the DWI charges dismissed. It is important to understand that this action must come directly from the prosecutor; it is not a solution that can be suggested by your defense attorney.

Pleading Guilty in a NJ DWI Case

In New Jersey, there are only two potential pleas to your DWI charges: guilty or not guilty.

The Problem With “Guilty”

Pleading guilty to DWI is, obviously, an admission of guilt. In reality, it is giving up on your case. Even if you did drink before getting behind the wheel, pleading guilty will often cause more long-term problems for you than if you were to fight the charges.

Consider the Penalties

The only time you should even consider pleading guilty to a DWI is after hiring an experienced DWI lawyer who determines that there is no chance at all of successfully beating your case.

First OffenseSecond OffenseThird Offense
First offenders with a low BAC of .08 or .09 have very little reason to plead guilty. Not only will you be subject to all of the penalties associated with a first offense, you must plead guilty to both the DWI and the refusal, which the prosecutor is unable to dismiss under New Jersey law.If you have one prior DWI, it is unlikely that you would want to plead guilty. You will lose your license for two years and be subject to all of the other penalties of a second offense.A third or subsequent DWI should not be pled guilty except in extreme circumstances. A guilty plea will result in a six-month jail sentence, a 10-year loss of license as well as other serious penalties.

Not Guilty Plea: Sending a Message

A plea of Not Guilty tells the prosecution and the court that you want to fight the case. With this plea, you are standing up and saying that you want your attorney to challenge the state’s proof. If you are facing DWI charges in New Jersey, do not stand by and let the charges against you ruin your life. Work with an experienced advocate who will fight for you every step of the way.

Dismissal of Your DWI

In order for your DWI case to be dismissed, the prosecutor must say to the judge that he or she cannot prove either of the following beyond a reasonable doubt:

1. That you had a blood alcohol content at or above the legal limit and were therefore legally drunk2. That the observations of the police officer during the stop, which may include field sobriety tests, were evidence of impaired behavior

It is important to understand that because no two DWI cases are the same, a dismissal of charges may not be feasible for everyone. You should speak with an experienced DWI defense attorney to discuss the potential outcomes for your specific case.

Why Fight My New Jersey DWI Charge?

Facing DWI charges can be daunting. And if you did have a drink or two before getting behind the wheel, you may be wondering if you should work with a defense attorney. Is it worth it to fight your DWI charges? Absolutely.

Potential Defenses

While DWI is a serious charge, it is also one of the most complicated to prosecute and defend.

There are many, many facets of a DWI case including:
The Initial StopThe Police Officer's Conduct
Breath Testing ProceduresAccuracy of the Breath Test
Problems with a Blood or Urine Test

If there was an issue with even one of these pieces of the case, an experienced DWI attorney will be able to mount an effective defense on your behalf.

Will I go to Jail after my NJ DWI Charge?

If you are convicted of DWI in New Jersey, you face a real possibility of jail time—even for a first offense. New Jersey has enacted some of the toughest DWI laws in the country, and even someone with a perfect driving record and clear criminal history can end up in jail for a first offense.

Jail Sentence for New Jersey DWI Convictions

OffenseJail Sentence
First OffenseUp to 30 Days
Second Offense2 - 90 Days Mandatory
Third Offense 180 Days Mandatory

Consequences of Going to Jail

The stigma attached to going to jail can have serious repercussions in many areas of your life.

For Example:
Social & Professional HumiliationLost Pay for Missed Work or Possible Job Loss
Strain on Your Personal RelationshipsDenial or Revocation of Security Clearance for Certain Jobs

Why Fight?

You have two choices when you are charged with DWI: plead guilty or stand and fight. You do not need an attorney if you plan to plead guilty. However, the penalties for DWI conviction can be substantial, so it is likely that fighting the charge is in your best interest. The best way to protect yourself is to work with an experienced trial lawyer who is willing to stand up to the prosecution.

It is important to defend yourself against DWI charges because the penalties of a conviction are serious and could have an impact on the rest of your life. Fines, jail time and an ignition interlock device are just the beginning. The stigma of a DWI on your record will follow you for years to come and could impact your ability to get car insurance or even find a job.

Don't Surrender Before the Fight Has Begun

You can tell whether an attorney is willing to fight for you from your initial consultation. The lawyer who talks to you about pleading guilty before even reading your reports, watching your videos, and looking for possible defenses has already surrendered. You need an aggressive attorney who will review every detail of your case and fight for your rights every step of the way.

Attorney Steven Hernandez is Prepared to Fight for You

Too many attorneys treat all DWI cases the same way. They spend very little time studying the science behind BAC testing or learning the nuances of New Jersey state law. Many times, these lawyers take the prosecution’s evidence at face value and don’t take the time needed to challenge its accuracy.

I have been fighting DWIs in New Jersey for over ten years and have built a reputation as an aggressive defense attorney. From the justification of your initial traffic stop and the administration of field sobriety tests to the accuracy of the chemical BAC test, I am ready to challenge every aspect of the prosecution’s case against you and leave no stone unturned in defense of your case.

Why Should You Hire NJ DWI Lawyer Steven Hernandez?

1. Because a DWI Conviction Can Have Life-Altering Consequences

A conviction of Driving While Intoxicated (DWI) can haunt you for the rest of your life. If convicted, you could lose your driver’s license, spend time behind bars, and potentially put your career in jeopardy. Further, a DWI conviction can impact your auto insurance rates, your ability to travel, and your chances of finding new employment.

2. There is No Substitute for Real DWI Training

Even if your attorney knows the law, it can be very hard to successfully defend a DWI without the proper training. A lawyer who has the right training can level the playing field and significantly increase your chances for a positive outcome.

Attorney Hernandez has been a Field Sobriety Test instructor since 2011. He has successfully completed the Drug Recognition Expert overview training, which helps him represent clients charged with drug-related DWIs. Attorney Hernandez is also a certified operator of the Alcotest 7110 Mark IIIC breath testing machine, which is used by law enforcement agencies across the state of New Jersey. Additionally, Attorney Hernandez has logged over 110 hours of training in the forensic analysis of blood and urine, and he successfully passed the ACS Lawyer Scientist Examination in 2014.

3. Courtroom Experience Matters

When it comes to successful DWI defense, nothing is more important than real courtroom experience.When it comes to successful DWI defense, nothing is more important than real courtroom experience. Mr. Hernandez has been defending clients against DWI charges for over a decade, helping them avoid jail time and retain their driving privileges. Attorney Hernandez is an aggressive defense attorney who will vigorously represent you and help you achieve the most favorable outcome possible in your case. Hernandez has been defending clients against DWI charges for over a decade, helping them avoid jail time and retain their driving privileges. Attorney Hernandez is an aggressive defense attorney who will vigorously represent you and help you achieve the most favorable outcome possible in your case.