Driving While Intoxicated (DWI) in New Jersey

N.J.S.A. 39:4-50 · DWI, Refusal & Alcohol/Drug Driving Offenses

What the law says

The section prohibits operating a motor vehicle while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug, and operating with a blood alcohol concentration of 0.08 percent or more by weight of alcohol in the defendant’s blood. It also prohibits permitting another person who is under the influence of those substances, or who has a blood alcohol concentration of 0.08 percent or more, to operate a motor vehicle the person owns or has in their custody or control.

Motor vehicle offenses like this are heard in the municipal court where the ticket was issued. A motor vehicle conviction isn't a criminal record, but it can bring fines, MVC points, surcharges, license suspension, and higher insurance costs.

What the statute covers

Key rules in N.J.S.A. 39:4-50 that the State relies on:

How the charge is graded

• For the first offense, if the person’s blood alcohol concentration is 0.08 percent or higher but less than 0.10 percent, or the person operates a motor vehicle while under the influence of intoxicating liquor, or the person permits another person who is under the influence of intoxicating liquor to operate a motor vehicle owned by him or in his custody or control or permits another person with a blood alcohol concentration of 0.08 percent or higher but less than 0.10 percent to operate a motor vehicle, the person is subject to the first-offense tier in paragraph (1)(i).
• For the first offense, if the person’s blood alcohol concentration is 0.10 percent or higher, or the person operates a motor vehicle while under the influence of a narcotic, hallucinogenic or habit-producing drug, or permits another person who is under the influence of such a drug to operate a motor vehicle owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10 percent or more to operate a motor vehicle, the person is subject to the first-offense tier in paragraph (1)(ii).
• For a second violation, the person is subject to the second-violation tier in paragraph (2).
• For a third or subsequent violation, the person is subject to the third-or-subsequent-violation tier in paragraph (3).

Penalties in the statute

• First offense under paragraph (1)(i): a fine of not less than $250 nor more than $400; detainment of not less than 12 hours nor more than 48 hours, spent during two consecutive days of not less than six hours each day and served as prescribed by the Intoxicated Driver Resource Center program requirements; and, in the discretion of the court, imprisonment of not more than 30 days.
• For a first offense under paragraph (1)(i), the court shall order forfeiture of the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates.
• First offense under paragraph (1)(ii): a fine of not less than $300 nor more than $500; detainment of not less than 12 hours nor more than 48 hours, spent during two consecutive days of not less than six hours each day and served as prescribed by the Intoxicated Driver Resource Center program requirements; and, in the discretion of the court, imprisonment of not more than 30 days.
• For a first offense involving operation under the influence of a narcotic, hallucinogenic or habit-producing drug, or permitting another person under the influence of such a drug to operate the person’s vehicle, forfeiture of the right to operate a motor vehicle over the highways of this State for not less than seven months nor more than one year.
• For a first offense with a blood alcohol concentration of 0.10 percent or higher but less than 0.15 percent, forfeiture of the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates.
• For a first offense with a blood alcohol concentration of 0.15 percent or higher, forfeiture of the right to operate a motor vehicle over the highways of this State for three months following installation of an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates.
• For a second violation: a fine of not less than $500 nor more than $1,000; community service for a period of 30 days; imprisonment for not less than 48 consecutive hours, which shall not be suspended or served on probation, or more than 90 days; and forfeiture of the right to operate a motor vehicle over the highways of this State for not less than one year or more than two years upon conviction.
• For a third or subsequent violation: a fine of $1,000; imprisonment for not less than 180 days in a county jail or workhouse, except that the court may lower the term for each day, not exceeding 90 days, served participating in a substance use disorder inpatient rehabilitation program approved by the Intoxicated Driver Resource Center; and forfeiture of the right to operate a motor vehicle over the highways of this State for eight years.
• For a second or third or subsequent violation, the person is required to install an ignition interlock device under P.L.1999, c.417 (C.39:4-50.16 et al.).
• A person convicted of operating a commercial motor vehicle under the influence of a controlled substance pursuant to section 5 of P.L.1990, c.103 (C.39:3-10.13) shall forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than six months.
• A person convicted under this section must satisfy the screening, evaluation, referral, program and fee requirements of the Division of Mental Health and Addiction Services’ Intoxicated Driving Program, the Intoxicated Driver Resource Centers, and a program of substance use disorder education and highway safety. Failure to satisfy those requirements results in a mandatory two-day term of imprisonment in a county jail and driver license revocation or suspension, with continuation until the requirements are satisfied, unless stayed by court order in accordance with the Rules Governing the Courts of the State of New Jersey, or R.S.39:5-22.
• A $100 fee is payable to the Alcohol Education, Rehabilitation and Enforcement Fund to support the Intoxicated Driving Program.
• A person attending an Intoxicated Driver Resource Center must pay a per diem fee of $75 for the first offender program or $100 for the second offender program, as appropriate.
• In addition to any other fine, fee, or other charge imposed pursuant to law, the court shall assess a surcharge of $125: $50 payable to the municipality in which the conviction was obtained, $50 payable to the Treasurer of the State of New Jersey for deposit into the General Fund, and $25 payable to the municipality, county, or General Fund as specified in subsection (i), depending on which law enforcement agency issued the summons.
• For a first-offense interlock device installed before conviction, a person who possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction is not subject to the applicable fine if the person obtains a driver’s license with the appropriate interlock notation. For a blood alcohol concentration of 0.15 percent or higher, a qualifying person receives a one-day credit against the license-forfeiture period for every two days the device is installed and the person has a driver’s license with the appropriate notation.
• For a second or third or subsequent violation, a qualifying person who installs an ignition interlock device before conviction and obtains a driver’s license with the appropriate notation receives a one-day credit against the license-forfeiture period for every two days the device is installed and the person has a driver’s license with the appropriate notation, and is not subject to the applicable fine if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction.

MVC points and surcharges

• MVC insurance surcharge: $1,000 a year for three years ($3,000 total) for a first or second DWI, and $1,500 a year for three years for a third DWI within three years of the last offense.
• Collecting 6 or more points within three years brings a surcharge of $150 plus $25 for each additional point, and 12 or more points leads to a license suspension.

Other rules that can matter

• The section defines “narcotic, hallucinogenic or habit-producing drug” to include an inhalant or other substance containing a chemical capable of releasing toxic vapors or fumes to induce intoxication, and lists numerous chemical compounds, including acetone and acetate; amyl nitrite or amyl nitrate or their isomers; benzene; butyl alcohol; butyl nitrite; butyl nitrate or their isomers; ethyl acetate; ethyl alcohol; ethyl nitrite or ethyl nitrate; ethylene dichloride; isobutyl alcohol or isopropyl alcohol; methyl alcohol; methyl ethyl ketone; nitrous oxide; n-propyl alcohol; phencyclidine; petroleum ether; propyl nitrite or propyl nitrate or their isomers; toluene; toluol; and xylene, as well as any other chemical substance capable of causing intoxication, inebriation, excitement, stupefaction, or dulling of the brain or nervous system as a result of inhalation of its fumes or vapors.
• A conviction of a violation of a law of a substantially similar nature in another jurisdiction constitutes a prior conviction unless the defendant demonstrates by clear and convincing evidence that the other-jurisdiction conviction was based exclusively on a prohibited blood alcohol concentration of less than 0.08 percent.
• If a second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes. If a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.
• A prior conviction need not be charged as a second or subsequent offense in the complaint to make the person liable to the corresponding punishment. A person liable to second-or-subsequent-offender punishment is entitled to the same discovery rights allowed defendants under the Rules Governing the Courts of the State of New Jersey.
• A person arrested for a violation may, before conviction, voluntarily install an ignition interlock device in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, and request a driver’s license bearing a notation that the person shall not operate a motor vehicle unless it is equipped with an ignition interlock device. The request must include the interlock installer’s certification and documentation of pending charges, as determined by the Chief Administrator of the New Jersey Motor Vehicle Commission, and must be submitted no later than seven days after receipt of the documentation.
• A person is not entitled to a credit against a license-forfeiture period under the interlock-credit provisions if the violation resulted in serious bodily injury, as defined in N.J.S.2C:11-1, to another person.
• A plea agreement under this section is authorized upon recommendation by the prosecutor and with an appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes or offense under Title 2C of the New Jersey Statutes.
• If a person’s driving privilege is under revocation or suspension for a violation of Title 39 or Title 2C at the time of conviction, the revocation or suspension period imposed under this section begins when the existing revocation or suspension period ends.

Common defense strategies

Every case turns on its facts, but defenses we often explore include:

• Lack of reasonable suspicion for the stop
• Alcotest calibration, 20-minute observation, and operator certification issues
• Field sobriety test administration and medical conditions
• Discovery of video, dispatch, and maintenance records

What to do right now

1. Don't pay the ticket online. Paying is a guilty plea.
2. Check your driver history abstract so you know your current points.
3. Keep the summons and write down what happened at the stop.
4. Tell your lawyer if you hold a CDL or already have points or suspensions.
5. Call before your court date. Many tickets can be resolved without you missing work.

How we help

Edward G. Appel has defended New Jersey clients since 1988 in municipal and Superior Courts in all 21 counties. We review the discovery, look for weaknesses in the State's case, file motions where they're warranted, and push for dismissals, downgrades, or diversion before you face a trial. Call 856-856-2373 for a free, confidential consultation about your Driving While Intoxicated (DWI) charge.

Related charges

• Refusal to Submit to a Breath Test →
• DWI in a School Zone →
• Open Container of Alcohol in a Vehicle →
• Possession of CDS in a Motor Vehicle →

Sources

• N.J.S.A. 39:4-50 on Justia (2024 New Jersey Revised Statutes)
• NJ MVC points schedule
• NJ MVC surcharges

Statute summaries are based on the 2024 compilation of the New Jersey Revised Statutes. Laws change, so confirm the current version with counsel.

Disclaimer: This page is general information about New Jersey law, not legal advice, and doesn't create an attorney-client relationship. Prior results don't guarantee a similar outcome.