The consequences of a conviction for driving while intoxicated (DWI Offense) or refusing to submit to breath test (Refusal Offense) are enormous. Apart from the personal embarrassment and social stigma associated with a conviction of one of these offenses, the law provides the sentencing court with a whole constellation of penalties, including periods of incarceration, mandatory loss of driving privileges for an extended term and thousands of dollars of financial sanctions. The extent of these penalties increases almost exponentially with the number of prior DWI Offense convictions you may have and whether the offense occurred in a school zone. (School Zone Offense).



The prospect of success in every legal controversy is influenced by a number of important considerations including the ability of your lawyer, the quality of your evidence and the capabilities of your trial judge. One of the most critical factors, however, is the political and social environment in which the contest is litigated. In order to truly appreciate the nature and extent of your present predicament, it is important that you know about the special environment that affects these types of cases.

Today, 18 million Americans meet the diagnostic criteria for alcohol abuse or alcoholism. Forty percent of all violent crimes were committed by people who were under the influence of alcohol. In 2003, 1.4 million drivers were arrested in this country for alcohol-related offenses, which equates to 1 arrest for every 135 drivers. Drivers with a blood alcohol concentration (BAC) over .15% are more than 200 times more likely to be involved in a fatal crash than a non-drinking driver. Half of all teenage fatalities are alcohol-related. In 1996, 8 young people a day died because of alcohol-related crashes. In 2004, there were over 17,600 alcohol related deaths in New Jersey. The cost for treating the survivors of these crashes averaged $67,000 a person. On a national level and for teenage accident alone, the costs in property damage and health care expenses is $14,000,000,000

The National Highway Traffic Safety Administration reports that nearly 97 % of Americans view drunk drivers as a threat to their families and themselves. Indeed, Americans rank the need for tougher enforcement of drunk driving laws ahead of healthcare, poverty, the environment and gun control. As a result, most, if not all, states have implemented a get tough attitude toward drunk drivers.

The compulsion of these political and social factors has produced an extremely hostile attitude toward people accused of DWI-related offenses. In one case, New Jersey's Supreme Court stated that the courts in New Jersey are working in tandem with the legislature to remove the obstacles that can impede the efficient and successful prosecution of drunk drivers. This remarkable declaration clearly joins New Jersey's judiciary and its legislators in a common cause to aggressively prosecute drunk drivers. This avowed philosophy is inconsistent with core concepts contained in our federal and state constitutions that require the separation of powers of the three branches of government, so as to allow one branch to check and balance the others.

There are other considerations that can seriously impede your ability to obtain a successful result in a DWI-related offense. First, all DWI and Refusal Offenses are tried without a jury. They are decided by a municipal court judge, who is appointed by local politicians and is usually familiar with the arresting officers. This is important to know, because a jury of ordinary citizens is more apt to question the credibility of an investigating police officer, than a judge who may have strong contacts in the community where the case is tried. To my mind, the constitutional right to a jury trial is the most sacred of all trial rights that we have as American citizens. To best characterize my perception of this right, I refer to a case where the United States Supreme Court stated that this organic right of freedom is bottomed on an abiding concern for corrupt or over zealous prosecutors and against the compliant, biased or eccentric judge, as well as a reluctance to entrust plenary powers over the life and liberty of the citizens to a judge or a group of judges. Your inability to present your defense to a jury is of exceptional concern where, as here, the influences of the current political and social environment can seriously affect the outcome of a DWI or Refusal Offense.

Second, although the federal and state constitutions require the government to assume the burden of proving all elements of its case beyond a reasonable doubt, the legislation that controls a DWI Offense instructs that if your Blood Alcohol Concentration (BAC) exceeds .08%, you are presumed to be intoxicated and you have the burden of overcoming that presumption. This is yet another instance where New Jersey's DWI statute has turned another important constitutional guarantee on its head.

Third, in an apparent effort to require a rush to judgment, it has been determined that cases of this nature should be resolved within sixty (60) days after the filing of a complaint, which, by necessary implication, seriously compromises your ability to create a well-conceived defense. If, however, you are prepared to try your case within this time constraint and the government is not, the rule somehow loses its compulsion. Stated differently, if you seek an adjournment on the eve of this administrative deadline, you may not get it. If the government makes that same request at that same time, it will generally be granted. Indeed, 2 or 3 subsequent requests from the municipal prosecutor will be met with similar success.

Fourth, there is a well-directed prohibition against negotiating plea bargains in all DWI or Refusal Offenses. Although, a plea agreement may be negotiated in a murder case, your ability to strike a bargain that will allow you to plead to something other than a DWI Offense is virtually non-existent. The influence of this rule is such that any municipal court judge, prosecutor or defense attorney who participates in a plea arrangement that violates these anti-plea guidelines may be subjected to ethical discipline.

Finally, if you are convicted of a DWI or Refusal Offense, you will lose your driver's license; no exceptions! There are no provisional or hardship licenses available in New Jersey that can apply to a DWI related offense that will allow you to drive to or from work or school.

1. The government's difficulty in proving a case beyond a reasonable doubt is best typified by the O.J. Simpson trial.

Copyright (c) 2008 Frank Luciano