Fines and Penalties of Common Motor Vehicle Offenses

NOTICE TO THE BAR
Fines and Penalties of Common Motor Vehicle Offenses
Published with this notice is a revised schedule of Fines and Penalties of
Common Motor Vehicle Offenses (formerly the “Minimum Mandatory Fines and
Penalties Schedule”). The schedule includes only selected offenses commonly charged
under Title 39 of the New Jersey Statutes, not all chargeable motor vehicle offenses.
Please note that court costs and mandatory assessments are not included in the fine
amounts. The revisions are current through October 2008.
The schedule is being provided for the convenience of municipal court
practitioners. This is the first revision of the schedule since August 2004.
This notice and the appended schedule also will be posted on the Judiciary’s
Internet website (www.njcourtsonline.com).
/s/ Glenn A. Grant
_____________________________________
Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Dated: December 2, 2008
Fines and Penalties of Common Motor Vehicle Offenses
This schedule contains the fines and penalties of some common motor vehicle offenses. It is designed for quick reference and does not
contain every sentencing nuance. Therefore, judges should always consult with the applicable statute before imposing any
sentence.
The fines listed here DO NOT include court costs, so you may add court costs up to a maximum of $33.00, $5.50 of which may not be
suspended. See N.J.S.A. 22A:3-4. The listed fines also do not include the assessments found in N.J.S.A. 39:5-41, which, as of the date
of this schedule, total $6.00. Reference should be made to this statute to determine the correct amount of the assessments, at the time of
sentencing.
If the "VCCA" box is checked next to an offense, then the offense is subject to a mandatory Violent Crimes Compensation Agency
assessment of $50 in accordance with N.J.S.A. 2C:43-3.1. Similarly, if the "Safe Neigh." box is checked, the offense is subject to the
mandatory Safe Neighborhood assessment of $75 in accordance with N.J.S.A. 2C:43-3.2.
If the "65 mph" box is checked next to an offense, then the listed fines shall be doubled when the offense is committed in an area which
has been designated as having a speed limit of 65 miles per hour. N.J.S.A. 39:4-98.6. Similarly, if the "Con. Zone/Safe Cor" box is
checked, the listed fines shall be doubled when committed in an area of highway construction or repair, or when committed in a
designated safe corridor. N.J.S.A. 39:4-203.5.
October, 2008
In addition to the fines and penalties listed, a judge may revoke the driver's license of any person for the willful violation of any offense
found in subtitle 1 of Title 39, N.J.S.A. 39:1-1 to 39:5G-1. See N.J.S.A. 39:5-31.
If the "Payable" box is checked next to an offense, then the offense is listed in the Statewide Violations Bureau Schedule. REMEMBER
that the payable amounts listed in the Violations Bureau Schedule DO include court costs and assessments, so court costs and assessments
should never be added to the payable amount.
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:3-6.13(a) Registration card of
apportioned vehicle not in
vehicle
39:3-6.17 $500 $500
Tuesday, October 14, 2008 Page 1 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:3-9a Failure to notify change in
name
39:3-86 Fine or imprisonment not
exceeding 15 days, or both
$25 $500
39:3-9a Failure to endorse license 39:3-86 Fine or imprisonment not
exceeding 15 days, or both
$25 $500
39:3-10 Driving without a license
where offender has never
been licensed in N.J. or
elsewhere
Fine or imprisonment for not more
than 60 days and no license to
issue for at least 180 days
$200 $500
39:3-10 Driving without a license
where the offender has
been licensed in NJ or
elsewhere
Fine or imprisonment in the county
jail for not more than 60 days
None $500
39:3-10.18(a) Failure to possess valid
commercial driver’s license
Fine or imprisonment up to 60
days, or both
$250 $500
39:3-10.18(b) Driving a commercial
vehicle after driver's
license has been
suspended
1) Fine or imprisonment up to 90
days, or both
2) If accident with personal injury
to another occurs while violating
this section, 90 days
imprisonment, $5000 fine and
suspension of commercial driving
privileges in accordance with
N.J.S.A. 39:3-10.20(f)
$500 $5000
39:3-10.24 Refusal to consent to
taking samples of breath
after arrest for operating
commercial vehicle under
the influence pursuant to
N.J.S.A. 39:3-10.13
First offense: Fine and six month
revocation of driver's license, and
satisfy the requirements of a
program of alcohol education
pursuant to N.J.S.A. 39:4-50
$250 $500
39:3-10.24 Refusal to consent to
taking samples of breath
after arrest for operating
commercial vehicle under
the influence pursuant to
N.J.S.A. 39:3-10.13
Subsequent offense: Fine and 2
year revocation of driver's license,
and satisfy the requirements of a
program of alcohol education
pursuant to N.J.S.A. 39:4-50
$250 $500
Tuesday, October 14, 2008 Page 2 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:3-12 Illegal securing of driver’s
license
Fine or imprisonment for not less
than 30 days nor more than 90
days, or both
$200 $500
39:3-13.2a Violation of conditions of
the special learner's
permit, other than
conviction of alcohol or
drug related offense
39:3-13.8 $100 $100
39:3-20(e) Weight in excess of
limitation permitted by
certificate of registration for
commercial vehicles
Plus $100 per 1000 lbs. or fraction
thereof of excess weight
$500 none
39:3-20.1 Misuse of registration of
empty trucks
39:3-20.2 Fine and suspension or revocation
of the privilege
$25 $100
39:3-27.11 Misuse of fire department
or first aid squad plates
39:3-27.12 $25 $50
39:3-27.17 Misuse of disabled veteran
plates
39:3-27.18 $25 $50
39:3-27.21 Misuse of commuter van
plates
39:3-27.22 $25 $50
39:3-27.27 Misuse of street rod plates $25 $50
39:3-29 Failure to exhibit
documents
If person can exhibit card to judge,
then judge can dismiss but can
impose costs
$150 $150
39:3-29 Failure of omnibus driver to
exhibit documents
If person can exhibit card to judge,
then judge can dismiss but can
impose costs
$250 $250
39:3-29.8(a) Display/poss fictitious ID 39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:3-29.8(b) Lend I.D. card to another 39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
Tuesday, October 14, 2008 Page 3 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:3-29.8(c) Display/represent ID card
not issued to him/her
39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:3-29.8(d) Permit unlawful use of ID
card
39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:3-29.8(e) Utilization of ID card for
forbidden acts
39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:3-29.8(f) Reproduction of I.D. cards 39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:3-29.8(g) Alteration of I.D. cards 39:3-29.10
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:3-35 Lending or misusing
registration certificate or
plates
$25 $50
39:3-37 Falsifying application on
examination
Fine or imprisonment for not more
than 6 months, or both
$200 $500
39:3-38 Counterfeiting plate or
marker
Fine or revocation of driver’s
license not exceeding 6 months
$50 $100
39:3-38 Using other than issued
marker
$25 $50
39:3-40 Driving when license
refused, suspended,
revoked or prohibited
(See attached chart at the end of
the schedule)
39:3-47(c) No altering equipment to
defeat inspection
39:3-79 None $25
39:3-54.7 Unauthorized person
operating emergency lights
39:3-54.13 None $200
Tuesday, October 14, 2008 Page 4 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:3-54.10 More than 2 emergency
warning lights on vehicle
39:3-54.13 Privilege to operate emergency
warning lights may be suspended
or revoked
None $100
39:3-64(c) Warning signal required for
disabled vehicle
39:3-79 None $25
39:3-66 Maintenance of lamps,
reflectors, etc.
39:3-79 None $25
39:3-69 Horns and audible warning
devices
39:3-79 None $25
39:3-70 Mufflers 39:3-79 None $25
39:3-70.2 Air pollution from motor
vehicles and school buses
Fine is per day/per vehicle $250 $1000
39:3-71 Mirrors 39:3-79 None $25
39:3-72 Tire Equipment 39:3-79 None $25
39:3-74 Windshields must be
unobstructed and equipped
with cleaners
39:3-79 None $25
39:3-75 Safety glass 39:3-79 None $25
39:3-76.2 Sale or operation of vehicle
without safety belts
39:3-79 None $25
39:3-76.2a Restraint or booster seat
for child under age 8
39:3-76.2d Fine shall be suspended if
defendant can prove possession
and use of approved restraint
$10 $25
39:3-76.2f Failure to wear seat belt 39:3-76.2j $20 $20
39:3-76.5 Failure to equip
motorcycles with
permanent seat and
footrests for passenger
$50 $100
Tuesday, October 14, 2008 Page 5 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:3-79.8 Prohibition of supplying
fuel to vehicle without label
First offense (penalty may be
collected in accordance with
N.J.S.A. 2A: 58-10 et seq.)
$25 $25
Subsequent offense (penalty may
be collected in accordance with
N.J.S.A. 2A:58-10 et seq.)
$50 $50
39:3-80 Vehicle with inferior tires First offense $50 $100
Subsequent offense $100 $200
39:3-81 Tires fitted with projections Penalty may be collected in
accordance with N.J.S.A. 2A:58-
10 et seq.
$25 $50
39:3-84.3(i) Violation of dimensional
limitations
$150 $500
39:3-84.3(j) Violation of weight
limitations
Fine an amount equal to $0.02 per
pound for each pound of the total
excess weight provided the total
excess weight is 10,000 Ibs. or
less, or shall be fined an amount
equal to $0.03 per pound for each
pound of the total excess weight
provided that the total excess
weight is more than 10,000 lbs.,
but in no event should the fine be
less than $50
$50 none
39:3-84.3(l) Violation of designated
routes
First offense none $400
Second offense $700 $700
Subsequent offense $1000 $1000
39:3B-25 School bus driver using
cell phone
$250 $500
39:3C-17(a) Operating snowmobiles/all
terrain vehicles on limited
access highway
39:3C-28 $100 $200
Tuesday, October 14, 2008 Page 6 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-14.4 Sale of bike without
reflectors
39:4-14.8 First Offense None $50
Subsequent Offense $100 $100
39:4-14.10(e) Failure to wear helmet
while operating electric
personal assistive mobility
device violations
39:4-14.11 First offense: Warning none none
39:4-14.11 Second offense $10 $10
39:4-14.11 Third or subsequent offense,
requires court to impound the
device for not more than 30 days.
A person who fails to comply with
the requirements governing
warning notices shall be fined not
more than $100 for each violation.
none none
39:4-36 Driver to yield to
pedestrian at crosswalk
Fine or imprisonment not to
exceed 15 days
$100 $100
39:4-48 Operating or using a
vehicle without consent of
owner
$100 none
39:4-49 Tampering with vehicle First offense $10 $50
Subsequent offense: Fine or
imprisonment not exceeding 30
days, or both
$50 $100
39:4-49.1 Operation of a motor
vehicle while in possession
of controlled dangerous
substance
Fine and 2 years suspension of
driver’s license
$50 none
39:4-50 Operating under the
influence
(See attached chart at the end of
the schedule)
39:4-50.4a Refusal to undergo
breathalyzer test
(See attached chart at the end of
the schedule)
Tuesday, October 14, 2008 Page 7 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-50.14 Operation of motor vehicle
by person whose blood
alcohol is between .01%
and .08% and is under the
legal age to purchase
alcoholic beverages
Loss of license for not less than 30
days nor more than 90 days and
perform community service for not
less than 15 days nor more than
30 days. In addition, must satisfy
program and fee requirements of
the IDRC or participate in a
program of alcohol education and
highway safety. Penalties shall be
in addition to the penalties which
the court may impose under
N.J.S.A. 2C:33-15, N.J.S.A. 33:1-
81, N.J.S.A. 39:4-50, or any other
law
39:4-50.15(b) Parent driving while
intoxicated with child in car
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:4-50.19(b) Circumventing interlock
device
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:4-51a Consumption of alcoholic
beverage by operator or
passenger
First offense $200 $200
Second or subsequent offense:
Fine or 10 days community service
$250 $250
39:4-51b Possession of open
container of alcohol in
passenger compartment
First offense $200 $200
Subsequent offense: Fine or
community service for 10 days
$250 $250
39:4-52 Racing on highway First offense $25 $100
Subsequent offense $100 $200
39:4-53 Leaving vehicle with
engine running
$10 $25
39:4-56 Delaying traffic 39:4-203 Fine and imprisonment for a term
not exceeding 15 days
None $50
Tuesday, October 14, 2008 Page 8 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-56.1 Willful abandonment of
motor vehicle to obstruct
traffic
39:4-56.2 Fine and suspension of driver’s
license not less than 1 year nor
more than 5 years
$200 $500
Subsequent offense: Fine and
suspension of driver's license for 5
years
$500 $1000
39:4-56.5 Abandonment of motor
vehicle
First offense: Fine and license or
driving privileges may be
suspended or revoked by
Administrator of MVC for not more
than 2 years
$100 $500
Subsequent offense: Fine and
license or driving privileges may
be suspended or revoked by
Administrator of MVC for a period
of not more than 5 years
$500 $1000
39:4-56.8 Failure of towing service to
tow disabled vehicle
$25 $50
39:4-63 Placing, throwing, or
depositing injurious
substances on highway
Fine and may forfeit right to
operate a motor vehicle for 30 days
$100 $500
39:4-64 Throwing or dropping
debris from a vehicle
$200 $1000
39:4-66.2 Operation of motor vehicle
on public or private
property to avoid traffic
signal
Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-67 Obstructing passage of
vehicles
39:4-203 Fine and imprisonment for a term
not exceeding 15 days, or both
None $50
Tuesday, October 14, 2008 Page 9 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-76 Driving overweight vehicle
on interstate bridge
$0.02 per pound for each pound of
excess weight if the excess does
not exceed 10,000 pounds, and
$0.03 per pound for each pound of
excess weight if the excess weight
exceeds 10,000 pounds, but in no
event less than $50.00. In
addition, the owner of the vehicle
shall be responsible for damages
to the bridge
$50 none
39:4-77.1 Snow or ice falling off
moving vehicle- noncommercial
vehicle
$200 $1000
39:4-77.1 Snow or ice falling off
moving vehiclecommercial
vehicle
$500 $1500
39:4-80 Failure to obey directions
of officer
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-81 Failure to obey traffic
control device
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-82 Failure to keep right 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-82.1 Failure to drive on righthand
roadway
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-83 Failure to keep to right at
intersection
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-84 Failure to pass to right
when proceeding in
opposite direction
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-85 Failure to pass to left when
overtaking
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-85.1 Wrong way on one-way
street
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
Tuesday, October 14, 2008 Page 10 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-86 Failure to overtake and
pass properly
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-87 Failure to give overtaking
vehicle right of way
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-87.1 Failure to yield to bus 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-88 Failure to drive properly in
marked lanes
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-89 Following vehicle too
closely
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-90 Failure to yield right of way
at intersection
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-90.1 Entering or leaving limited
access highways
improperly
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-91 Failure to yield right of way
to emergency vehicles
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-92 Failure to pull over for
emergency vehicles and
following an emergency
vehicle too closely
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-92.1 Following fire department
vehicle too closely back to
fire station
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-94 Train unnecessarily
blocking highway
39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-96 Reckless driving First offense: Fine or
imprisonment not exceeding 60
days, or both
$50 $200
Second or subsequent offense:
Fine or imprisonment not
exceeding 3 months, or both
$100 $500
Tuesday, October 14, 2008 Page 11 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-97 Careless driving 39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-97a Motor vehicle operation
causing property damage
39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-97.1 Slow speed as to block
traffic
39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-97.2 Operating a motor vehicle
in an unsafe manner,
endangering persons or
property
First offense; $250 surcharge $50 $150
Second offense; $250 surcharge $100 $250
Third or subsequent offense; $250
surcharge
$200 $500
39:4-97.3 Operating a motor vehicle
while using a cell phone
39:4-97.3(d) If used as an alternative in a plea
agreement, then same as penalty
for N.J.S.A. 39:4-97.2
$100 $100
39:4-98 Speeding 39:4-104
39:4-98.7
Fine or imprisonment not
exceeding 15 days, or both when
guilty. Fine doubled when driving
20 mph over speed limit or 10 mph
over in a 65 mph zone
$50 $200
39:4-100 Speeding across sidewalk 39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-115 Failure to make proper turn 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-116 Failure to make proper turn
at arrow
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-117 Special pedestrian interval;
pedestrian violation
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-117 Special pedestrian interval;
motorist violation
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
Tuesday, October 14, 2008 Page 12 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-119 Failure to observe flashing
traffic signals
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-120.9 Motorists required to obey
traffic control device at
public-private intersection
39:4-120.10
39:4-203
Fine or improsonment for a term
not exceeding 15 days, or both
$50 $200
39:4-122 Failure to obey whistle of
police officer
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-123 Failure to make proper turn 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-124 Failure to turn as indicated
by buttons or markers at
intersection
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-125 U-Turn on curve or grade
where view obstructed or
"No-U-Turn" sign
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-126 Failure to signal before
starting, turning or stopping
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-127 Backing or turning in street 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-127.1 Failure to stop at railroad
crossings
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-127.2 Failure to stop at
approaches to movable
span bridges
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-128.1 Passing school bus while
picking up or discharging
First offense: Fine or
imprisonment not exceeding 15
days or 15 days community
service, or both
$100 none
Subsequent offense: Fine or
imprisonment not exceeding 15
days, or both
$250 none
Tuesday, October 14, 2008 Page 13 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-129(a) Leaving the scene of
accident involving injury or
death
First offense: Fine or 180 days
imprisonment, or both, and
suspension of driving privileges for
1 year from date of conviction.
Imprisonment shall be imposed
only if death or injury to another
person
$2500 $5000
Subsequent offense: Fine or 180
days imprisonment from date of
conviction, or both, and permanent
forfeiture of driver's license.
Imprisonment shall be imposed
only if death or injury to another
person
$2500 $5000
39:4-129(b) Leaving the scene of
accident involving
damages to attended
vehicle or property
First offense: Fine or
imprisonment not exceeding 30
days, or both, and suspension of
driving privileges for six months
from date of conviction
$200 $400
Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 90 days, or
both, and suspension of driving
privileges for 1 year from date of
conviction
$400 $600
39:4-129(d) Leaving the scene of
accident involving
damages to unattended
vehicle or property
First offense: Fine or
imprisonment not exceeding 30
days, or both, and suspension of
driving privileges for six months
from date of conviction
$200 $400
Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 90 days, or
both, and suspension of driving
privileges for 1 year from date of
conviction
$400 $600
39:4-130 Failure to report accident $30 $100
Tuesday, October 14, 2008 Page 14 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:4-132 Failure of repairman to
report damages
Fine or imprisonment not less than
30 days nor more than 90 days, or
both
$100 $500
39:4-144 Failure to obey "Stop" or
"Yield Right of Way" signs
39:4-203 Fine or imprisonment not
exceeding 15 days, or both
$50 $200
39:4-207.9 Failure to maintain
handicapped parking space
$500 $1000
39:4-208 Improper traffic & parking
on State property
39:4-209 $1 $15
39:4-208 Altering, conterfeiting or
misuse of State parking
permits
39:4-209 none $50
39:5C-1 Racing or making speed
records
First offense; disorderly persons
offense
$25 $100
Subsequent offense: Fine or
imprisonment for not more than 90
days or both; disorderly persons
offense
$100 $200
39:6B-2 Failure to carry motor
vehicle insurance coverage
First offense: Fine and a period of
community service as determined
by the court, and suspension of
driving privileges for 1 year
$300 $1000
Subsequent offense: Fine and
shall be subject to 14 days
imprisonment, and 30 days
community service and
suspension of driving privileges for
2 years from date of conviction
none $5000
39:8-18 Affixing approval sticker
without re-inspection or
conformity to standards
First offense: Fine and suspension
of re-inspection center’s license
for at least 1 year but not more
than 3 years
$1000 $1500
Subsequent offense: Fine and
permanent revocation of
reinspection center's license
$2000 $3500
Tuesday, October 14, 2008 Page 15 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:8-48 Private agency affixes
certificate without motor
vehicle inspection
Possible suspension of facility
license for a period of not less
than 6 months
$500 None
39:9-2 Commercial driver
exceeding maximum
permitted on-duty hours
39:9-4 First offense: If default in payment
of fine, defendant shall be
imprisoned for not more than 5
days
$25 $25
Subsequent offense: If default in
payment of fine, defendant shall
be imprisoned for not more than
10 days
$50 $50
39:10-10 Failure to deliver certificate
of ownership
$25 $25
39:10-11(a) Fail to submit evidence of
purchase to director
39:10-20 First offense None $500
Subsequent offense: Suspend
driver's license for less than
unexpired term or revoke
None $1000
39:10-12 False application for a
duplicate certificate of
ownership
Fine or imprisonment not
exceeding 30 days, or both
$200 $500
39:10-26 Motor vehicle dealer selling
vehicle that does not meet
standard
39:10-30
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:10-27 Seller of used vehicle fails
to make repair
39:10-30
2C:43-3
2C:43-8
Imprisonment shall not exceed 6
months; disorderly persons offense
None $1000
39:10B-2 Identification of motor
component parts: Violation
of record maintenance
requirements
Fine or imprisonment not
exceeding 90 days, or both.
$25 $100
39:11-3 Operating a junk yard
without a license
39:11-11 Fine or imprisonment not
exceeding 90 days, or both
$25 $100
Tuesday, October 14, 2008 Page 16 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:11-9 Failure of junk yard owner
to certify the condition of
vehicles sold
39:11-11 Fine or imprisonment not
exceeding 90 days, or both
$25 $100
39:12-2 Operating a driving school
without a license
39:12-12 First offense: Fine or
imprisonment not less than 10
days nor more than 30 days, or
both
$100 $250
Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 3 months, or
both
$250 $500
39:12-2.1 Failure of driving school
instructor to receive
required training
39:12-12 First offense: Fine or
imprisonment not less than 10
days nor more than 30 days, or
both
$100 $250
Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 3 months, or
both
$250 $500
39:12-5 Driving school employing
an unlicensed instructor
39:12-12 First offense: Fine or
imprisonment not less than 10
days nor more than 30 days, or
both
$100 $250
Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 3 months, or
both
$250 $500
39:12-11 Driving school failing to
keep records
39:12-12 First offense: Fine or
imprisonment not less than 10
days nor more than 30 days, or
both
$100 $250
Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 3 months, or
both
$250 $500
Tuesday, October 14, 2008 Page 17 of 18
N.J.S.A. Description Penalty
N.J.S.A.
Additional Penalties Minimum Maximum 65
MPH
Con. Zone
Safe Cor VCCA
Safe
Neigh. Payable
39:12-15 Failure to wear seat belts
in driver's school
(instructor and student)
First offense $25 $25
Subsequent offense $50 $50
Tuesday, October 14, 2008 Page 18 of 18
October 6, 2008
Page 1 of 13
N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50(g)
Offense 39:4-50
Driving while intoxicated
1st Offense - BAC 0.08% or - $250 to $400 fine, and
higher, but less than .10% or
observation case - IDRC 12 to 48 hours spent during 2 consecutive days of not less than 6 hours each day, and
- in court's discretion, imprisonment not exceeding 30 days, and
- driver's license suspension for a period of 3 months, and
- VCCA $50, DDEF $100, SNSF $75, AND $100 surcharge, and
- may order participation in supervised visitation programs either a condition of probation or a form of
community service, and
- may order installation of an ignition interlock device for not less than 6 months nor more than 1 year, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2-day term of imprisonment and driver's license suspension until requirements
are satisfied.
1st Offense - BAC 0.10% or - $300 to $500 fine, and
higher or operation under
influence of drugs - IDRC 12 to 48 hours spent during 2 consecutive days of not less than 6 hours each day, and
- in court's discretion, imprisonment not exceeding 30 days, and
- driver's license suspension for not less than 7 months nor more than 1 year, and
- VCCA $50, DDEF $100, SNSF $75, AND $100 surcharge, and
- may order participation in supervised visitation program as either a condition of probation or a form of
community service, and
October 6, 2008
Page 2 of 13
1st Offense – BAC 0.10% Cont. - may order installation of an ignition interlock device for not less than 6 months nor more than 1 year,
and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2-day term of imprisonment and driver's license suspension until requirements
are satisfied.
- $500 to $1000 fine, and
2nd Offense
- imprisonment of not less than 48 consecutive hours, which shall not be suspended or served on
probation, nor more than 90 days, and
- driver's license suspension for 2 years, and
- community service for 30 days, and
- VCCA $50, DDEF $100, SNSF $75, and $100 surcharge, and
- may order participation in a supervised visitation program as either a condition of probation or a form
of community service, and
- shall order installation of ignition interlock device for not less than 1 year nor more than 3 years, or
shall revoke all registration certificates and registration plates for 2 years, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2-day term of imprisonment and driver's license suspension until requirements
are satisfied.
3rd or Subsequent Offense - $1000 fine, and
- imprisonment not less than 180 days in county jail or workhouse, except that the court may order
defendant to serve up to 90 days of that sentence participating in a drug or alcohol inpatient
rehabilitation program approved by the IDRC, and
- driver's license suspension for 10 years, and
- VCCA $50, DDEF $100, SNSF $75, and $100 surcharge, and
- may order participation in a supervised visitation program as either a condition of probation or a form
of community service, and
October 6, 2008
Page 3 of 13
- shall order installation of ignition interlock device for not less than 1 year nor more than 3 years, or
shall revoke all registration certificates and registration plates for 10 years, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2- day term of imprisonment and driver's license suspension until requirements
are satisfied.
Please Note Please Note: If the 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 the 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.
October 6, 2008
Page 4 of 13
Offense 39:4-50(g)
Driving while intoxicated while on school property
1st Offense - $500 to $800 fine, and
- imprisonment not exceeding 60 days, and
- driver's license suspension for not less than 1 year nor more than 2 years, and
- VCCA $50, DDEF $100, SNSF $75, and $100 surcharge, and
- shall order installation of an ignition interlock device for not less than 6 months nor more than 1 year,
and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2-day term of imprisonment and driver's license suspension until requirements are
satisfied.
2nd Offense - $1000 to $2000 fine, and
- imprisonment of not less than 96 consecutive hours, which shall not be suspended or served on
probation, nor more than 180 days, except that the court may lower such term for each day, not
exceeding 90 days, served performing community service, and
- driver's license suspension for 4 years, and
- community service for 60 days, and
- VCCA $50, DDEF $100, SNSF $75, and $100 surcharge, and
- shall order installation of ignition interlock device for not less than 1 year nor more than 3 years, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2-day term of imprisonment and driver's license suspension until requirements are
satisfied.
October 6, 2008
Page 5 of 13
3rd or Subsequent - $2000 fine, and
- imprisonment not less than 180 days in a county jail or workhouse, except that the court may order the
defendant to serve up to 90 days of that sentence participating in a drug or alcohol inpatient
rehabilitation program approved by the IDRC, and
- driver's license suspension for 20 years to start upon completion of any prison sentence, and
- VCCA $50, DDEF $100, SNSF $75, and $100 surcharge, and
- shall order installation of ignition interlock device for not less than 1 year nor more than 3 years, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
met, then mandatory 2-day term of imprisonment and driver's license suspension until requirements are
satisfied.
October 6, 2008
Page 6 of 13
N.J.S.A. 39:4-50.4a
Offense 39:4-50.4a
Refusal to submit to chemical test (penalty provision at N.J.S.A. 39:4-50.4a(a)
1st Offense - $300 to $500 fine, and
- driver's license suspension not less than 7 months or more than 1 year (consecutive to any revocation
imposed under N.J.S.A. 39:4-50 unless part of a permitted plea agreement in which event the
suspension may be concurrent), and
- DDEF $100, and
- shall refer offender to IDRC.
2nd Offense - $500 to $1000 fine, and
- driver's license suspension for 2 years (consecutive to any revocation imposed under N.J.S.A. 39:4-50),
and
- DDEF $100, and
- shall refer offender to IDRC.
3rd or Subsequent - $1000 fine, and
- driver's license suspension for 10 years (consecutive to any revocation imposed under
N.J.S.A. 39:4-50), and
- DDEF $100, and
- shall refer offender to IDRC.
October 6, 2008
Page 7 of 13
Offense 39:4-50.4a
Refusal to submit to chemical test on school property (penalty provision at N.J.S.A. 39:4-50.4a(b)
1st Offense - $600 to $1000 fine, and
- driver's license suspension not less than 1 year or more than 2 years (consecutive to any revocation
imposed under N.J.S.A. 39:4-50), and
- DDEF $100, and
- shall refer offender to IDRC.
2nd Offense - $1000 to $2000 fine, and
- driver's license suspension for 4 years (consecutive to any revocation imposed under N.J.S.A. 39:4-50),
and
- DDEF $100, and
- shall refer offender to IDRC.
3rd or Subsequent - $2000 fine, and
- driver's license suspension for 20 years (consecutive to any revocation imposed under
N.J.S.A. 39:4- 50), and
- DDEF $100, and
- shall refer offender to IDRC.
October 6, 2008
Page 8 of 13
N.J.S.A. 39:3-40 October, 2008
Note: For all offenses under this statute that involve an accident resulting in personal injury to another, the court is required to impose a
period of imprisonment for not less than 45 days, or more than 180 days. N.J.S.A. 39:3-40(e).
Offense 39:3-40
Driving while license suspended- general provision
1st Offense
- $500 fine, and
- driver's license suspension not to exceed 6 months
2nd Offense
- $750 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment for at least 1 but not more than 5 days, and
- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for
the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment
for previous offense. (N.J.S.A. 39:3-40(j)).
3rd or Subsequent
Offense - $1000 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment for 10 days, and
- if 3rd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for the
period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment for
previous offense.
October 6, 2008
Page 9 of 13
Offense 39:3-40 (f) (1)
Driving while license suspended due to conviction for N.J.S.A. 39:6B-2 (driving without insurance)
1st Offense
- $1000 fine, and
- driver's license suspension not less than 12 months, nor more than 30 months, and
- may impose imprisonment not more than 90 days.
2nd Offense
- $1250 fine, and
- driver's license suspension of not less than 12 months nor more than 30 months, and
- may impose period of imprisonment of not more than 90 days, and
- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for
the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment
for previous offense.
3rd or Subsequent
Offense - $1500 fine, and
- driver's license suspension of not less than 12 months nor more than 30 months, and
- imprisonment for not less than 10 days, nor more than 90 days, and
- if 3rd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for the
period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment for
previous offense.
October 6, 2008
Page 10 of 13
Offense 39:3-40 (f) (2)
Driving while license suspended due to conviction for:
- N.J.S.A. 39:4-50 (driving while intoxicated), or
- N.J.S.A. 39:4-50.4a (refusal to submit to chemical test), or
- N.J.S.A. 39:5-30a to -30e (habitual offender)
1st Offense
- $1000 fine, and
-driver's license suspension of not less than 12 months, nor more than 30 months, and
-imprisonment of not less than 10 days, nor more than 90 days, and
-revocation of all registration certificates for the period driver's license is suspended (see N.J.S.A. 39:3-40.1)
2nd Offense
-$1250 fine, and
- driver's license suspension for not less than 12 months, nor more than 30 months, and
- imprisonment of not less than 10 days, nor more than 90 days, and
- revocation of all registration certificates for the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment
for previous offense.
3rd or Subsequent
Offense - $1500 fine, and
- driver's license suspension for not less than 12 months, nor more than 30 months, and
- imprisonment of not less than 10 days, nor more than 90 days, and
- revocation of all registration certificates for the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment for
previous offense.
October 6, 2008
Page 11 of 13
Offense 39:3-40 (f) (3)
Driving while license suspended in a school zone due to conviction for:
- N.J.S.A. 39:4-50 (driving while intoxicated), or
- N.J.S.A. 39:4-50.4a (refusal to submit to chemical test)
1st Offense
- $1000 fine, and
- driver's license suspension for not less than 12 months, nor more than 30 months, and
- imprisonment of not less than 60 days nor more than 90 days.
2nd Offense
- $1250 fine, and
- driver's license suspension for not less than 12 months, nor more than 30 months, and
- imprisonment of not less than 120 days nor more than 150 days, and
- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for
the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment
for previous offense.
3rd or Subsequent
Offense - $1500 fine, and
- driver's license suspension for not less than 12 months, nor more than 30 months, and
- imprisonment for 180 days, and
- if 3rd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for the
period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment for
previous offense.
October 6, 2008
Page 12 of 13
Offense 39:3-40 (g)
Driving while license suspended for failure to pay surcharges under N.J.S.A. 17:29A-35
1st Offense
- $500 fine, and
- driver's license suspension not to exceed 6 months, and
- $3000 fine to be collected by MVC. Fine to be waived upon payment of total surcharge imposed
2nd Offense
- $750 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment for at least 1 but not more than 5 days, and
- $3000 fine to be collected by MVC. Fine to be waived upon payment of total surcharge imposed, and
- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for
the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment
for previous offense.
3rd or Subsequent
Offense - $1000 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment for 10 days, and
- $3000 fine to be collected by MVC. Fine to be waived upon payment of total surcharge imposed, and
- if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of all registration certificates for the
period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment for
previous offense.
October 6, 2008
Page 13 of 13
Offense 39:3-40(i)
Driving while license is suspended for failure to respond to failure to appear notice or to pay parking judgment or
for failure to comply with a time payment order.
1st Offense
- maximum $100 fine upon proof that the violator has satisfied the parking tickets

N.J.S.A. 39:4-50 and 39:4-50.4a fines

N.J.S.A. 39:4-50 and 39:4-50.4a
August 9, 2004
Offense
39:4-50
Driving while intoxicated
1st Offense—
BAC 0.08% or higher, but less than .10%
- $250 to $400 fine, and
- IDRC 12 to 48 hours, and
- in court’s discretion, imprisonment not exceeding 30 days, and
- driver’s license suspension for a period of 3 months, and
- VCCB $50, DDEF $100, SNSF $75, and $100 surcharge, and
- may order participation in supervised visitation program as either a condition of probation or a form of community service, and
- may order installation of an interlock device for not less than 6 months nor more than 1 year, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not met, then mandatory 2-day term of imprisonment and driver’s license suspension until requirements are satisfied.
1st Offense—
BAC 0.10% or higher
- $300 to $500 fine, and
- IDRC 12 to 48 hours, and
- in court’s discretion imprisonment not exceeding 30 days, and
- driver’s license suspension for not less than 7 months nor more than 1 year, and
- VCCB $50, DDEF $100, SNSF $75, and $100 surcharge, and
- may order participation in supervised visitation program as either a condition of probation or a form of community service, and
- may order installation of an interlock device for not less than 6 months nor more than 1 year, and
- satisfy the screening, evaluation, and referral requirements of the IDRC. If these requirements are not
1

Driving While Suspended N.J.S.A. 39:3-40

Driving While Suspended N.J.S.A. 39:3-40
Note: For all offenses under this statute that involve an accident resulting in personal injury to another, the court is required to
impose a period of imprisonment for not less than 45 days, or more than 180 days. N.J.S.A. 39:3-40(e). If the accident results in the
death of another person, then the defendant shall be guilty of a crime of the third degree and the defendant's driver's license shall be
suspended for an additional period of one year. If the accident results in serious bodily injury to another person, then the defendant
shall be guilty of a crime of the fourth degree and the defendant's driver's license shall be suspended for an additional period of one
year.
Offense 39:3-40
driving while license suspended- general provision
1st Offense
- $500 fine, and
- driver's license suspension not to exceed 6 months
2nd Offense
- $750 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment not more than 5 days, and
- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period
driver's license is suspended (see N.J.S.A. 39:3-40.1)
3rd or Subsequent
Offense - $1000 fine, and
- driver's license suspension not to exceed 6 months, and
- imprisonment for 10 days, and
- if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's
license is suspended (see N.J.S.A. 39:3-40.1)

HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR 2009

HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR
Featuring a discussion on the newly released court rules!


Saturday, October 17, 2009
9:00 AM to 12:30 PM
The Westin Mount Laurel, Mt. Laurel

Monday, October 26, 2009
6:00 PM to 9:30 PM
Sheraton Edison, Edison (Raritan Center)

Presented in cooperation with the NJSBA Municipal Court Section and
the NJSBA Young Lawyers’ Section

Are you prepared to prosecute or defend your client in new Alcotest cases? Are you familiar with the new & increased penalties for certain offenses?
This informative guide to Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court. An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Gain a thorough understanding of Municipal Court practice, procedure, & recent developments...

• Criminal Case Law and Legislative Update

• The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues

• Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff

• Recent developments in traffic law, merged traffic tickets and more

• DWI and Chun

• A special Q&A session: Ask the Experts

Speakers include:

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Chair, ABA Elder Law Committee
K. Vercammen & Associates
(at Mt. Laurel & Edison)

HON. ROBERT J. ZANE, III, PJMC
(Camden)
(at Mt. Laurel)

WILLIAM G. BRIGIANI, ESQ.
(at Mt. Laurel & Edison)

ROBERT A. GLEANER, ESQ.
Prosecutor in Audubon and Stratford (Camden County)
(at Mt. Laurel)

JOHN MENZEL, ESQ.
(at Mt. Laurel & Edison)

HON. JOHN J. COYLE, JR. JSC
(Belvidere)
(at Edison)

HON. JOAN ROBINSON GROSS, PJMC
(Union County)
Chair, Supreme Court Municipal Practice Committee (Union County)
(at Edison)


NORMA M. MURGADO, ESQ.
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)

(at Edison)

New Jersey Institute for Continuing Legal Education 
The non-profit continuing education service of: 
The New Jersey State Bar Association Rutgers - The State University of New Jerseys Seton Hall University 
One Constitution Square, New Brunswick, New Jersey 08901-1520 
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com • Privacy Policy

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

ATTORNEY GENERAL GUIDELINE: PROSECUTION OF DWI / REFUSAL VIOLATIONS

ATTORNEY GENERAL GUIDELINE:
PROSECUTION OF DWI & REFUSAL VIOLATIONS
DATE: January 24, 2005
Section 3 of P.L.2004, chapter 8,1 included a provision that the Attorney General shall
promulgate guidelines concerning the prosecution of DWI and DWI refusal violations. The
Legislative purpose for these Guidelines is “to promote the uniform enforcement of [the DWI
and refusal statutes.]”
Therefore, pursuant to P.L.2004, c.8, §3, and the authority granted to the Attorney
General of the State of New Jersey by the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et
seq., and N.J.S.A. 2B:12-27, the following Guidelines are issued to All County and Municipal
Prosecutors for the Prosecution of DWI and Refusal Violations.
These Guidelines replace all previously issued memoranda from the Division of Criminal
Justice or the Attorney General, regarding the Standard (Refusal) Statements for DWI refusal,
CDL/DWI refusal and OVWI refusal. Please inform all of the police departments and law
enforcement agencies in your county.
These Guidelines do not, however, replace or rescind any Attorney General Law
Enforcement Directives issued regarding DWI or DWI related subjects. E.g., Attorney General
Attorney General Guideline: Page 2
Prosecution of DWI & Refusal Violations
2
All Attorney General Directives and Guidelines related to DWI enforcement are
available on the Division of Criminal Justice internet web site at www.state.nj.us/lps/dcj or
www.njdcj.org under the headings “AG Directives,” “AG Guidelines,” or “DWI Enforcement.”
Directive No. 2004-1, pertaining to “John’s Law.”2
In the event of future Legislative changes or case law developments, these Guidelines
may be amended or modified to reflect those changes or developments.
In addition, these Guidelines are not intended to supercede or conflict with the Attorney
General Directive, issued Nov. 18, 1998, To: All Municipal Prosecutors, Re: Plea Agreements in
Municipal Courts, or the “Guidelines for Operation of Plea Agreements [R. 7:6-2(d)],” as set
forth by the New Jersey Supreme Court, in the Appendix to Part VII “Practice in the Municipal
Courts,” effective Sept. 1, 2004, of the Rules Governing the Courts of the State of New Jersey, or
with the recently enacted amendment at N.J.S.A. 2B:25-5.1, requiring Municipal Prosecutors to
review motor vehicle abstracts of DWI offenders and present that information to the Court.
Purpose of Guidelines
Consistent with the Legislative mandate these Guidelines have been developed to assist
county and municipal prosecutors in the performance of their prosecutorial duties, pertaining to
individuals charged with violations of the DWI and/or DWI refusal statutes such that these
statutes are enforced in a uniform manner.
Questions by Municipal Prosecutors, regarding these Guidelines are to be directed to the
Municipal Prosecutor Supervisor in the County Prosecutor’s Office. If necessary, the Municipal
Prosecutor Supervisor can then contact the Prosecutors Supervision & Coordination Bureau in
the Division of Criminal Justice with any questions or issues. Municipal Prosecutors and law
enforcement agency personnel, other than the Division of State Police, should not attempt to
contact the Division of Criminal Justice directly. Law enforcement officers with questions
regarding these Guidelines or the interpretation of any case or statute relating to these Guidelines
should contact the County Prosecutor’s Office.
Definitions
These Guidelines apply to the offenses, listed below. Accordingly, references, within
these Guidelines, to a DWI offense, or a DWI refusal offense shall include all of the offenses
referenced below:
! N.J.S.A. 39:4-50: DWI. Operating or allowing another person to operate a
vehicle while intoxicated or with a blood alcohol concentration at, or
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Prosecution of DWI & Refusal Violations
3
Chemical breath test or tests, means chemical analysis (N.J.A.C. 13:51-1.2) through the
use of tests administered to a defendant or suspect on an approved instrument (N.J.A.C. 13:51-
1.2, -3.5) by a certified Breath Test Operator (N.J.A.C. 13:51-1.2, 1.7), pursuant to approved
methods of chemical breath testing (N.J.A.C. 13:51-3.6).
4
Under the holding in State v. Reiner, 180 N.J. 307 (2004), “School zone” violations for
DWI, N.J.S.A. 39:4-50, or DWI refusal, N.J.S.A. 39:4-50.4a.b., under “Filomena’s Law,” P.L.
1999, c. 185, §§ 3-5, need to be specifically charged, on the Uniform Traffic Ticket, as N.J.S.A.
39:4-50(g) or N.J.S.A. 39:4-50.2 in a “school zone,” and the State must prove the additional
elements pertaining to a “school zone” for that offense. State v. Reiner, 180 N.J. at 318-9.
above, the per se limit set by the statute.
! N.J.S.A. 39:4-50.4a.a.: DWI refusal. Refusal to submit to chemical breath
testing, in violation of N.J.S.A. 39:4-50.2.3
! N.J.S.A. 39:4-50(g): DWI in a “school zone.”4 Operating or allowing
another person to operate a vehicle while intoxicated or with a blood
alcohol concentration at, or above, the per se limit set by the statute while
on school property used for school purposes owned by or leased to any
element or secondary school or school board, or within 1,000 feet of such
school property or driving through a school crossing designated as such by
ordinance, or driving through a school crossing, knowing that juveniles are
present.
! N.J.S.A. 39:4-50.4a.b.: DWI refusal in a “school zone.” Refusal to submit
to chemical breath testing, in violation of N.J.S.A. 39:4-50.2. while on
school property used for school purposes owned by or leased to any
element or secondary school or school board, or within 1,000 feet of such
school property or driving through a school crossing designated as such by
ordinance, or driving through a school crossing, knowing that juveniles are
present.
! N.J.S.A. 39:3-10.13: CDL/DWI. Operation of a commercial motor vehicle
while under the influence of alcohol or a controlled dangerous substance,
or with an alcohol concentration of 0.04% or more.
! N.J.S.A. 39:3-10.24f: CDL/DWI refusal. Refusal to submit to chemical
breath testing, in violation of N.J.S.A. 39:3-10.24.
! N.J.S.A. 12:7-46: OVWI. Operating or allowing another person to operate
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Prosecution of DWI & Refusal Violations
a vessel while intoxicated or with a blood alcohol concentration at, or
above, the per se limit set by the statute.
! N.J.S.A. 12:7-57, OVWI Refusal. Refusal to submit to chemical breath
testing, in violation of N.J.S.A. 12:7-55.
! N.J.S.A. 39:4-50.14, Zero Tolerance law. Operation of a motor vehicle by
a person who has consumed alcohol and has a blood alcohol concentration
of 0.01% or more, but less than 0.08%, and who is under the legal age to
purchase alcoholic beverages.
DWI and DWI Refusal Offenses - Elements
The uniform prosecution of persons charged with a DWI and/or a DWI refusal violation
requires both prosecutors and law enforcement officers to be familiar with the offenses, the
elements of those offenses, and the requisite burdens of proof to establish a violation.
The elements of a violation of the DWI offenses are:
! Operation
! Of a vehicle or vessel
! By a person
! While intoxicated, and/or
! With a blood alcohol or alcohol concentration at, or above, the per se limit
set by the statute.
The elements of a violation of a DWI “school zone” offense (N.J.S.A. 39:4-50(g)) are the
same as a DWI offense with the additional requirement to prove:
! The offense occurred while on school property used for school purposes
owned by or leased to any elementary or secondary school or school board,
or within 1,000 feet of such school property, or driving through a school
crossing designated as such by ordinance, or driving through a school
crossing, knowing that juveniles are present.
The elements of a violation of the DWI refusal offenses are:
! A person
! Was operating a motor vehicle on a public highway, or vessel
! The person was arrested, on probable cause, for a DWI violation
! The person refused to submit to chemical breath testing, after the law
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Prosecution of DWI & Refusal Violations
enforcement officer read the Standard New Jersey Motor Vehicle
Commission [NJ MVC] (Refusal) Statement for that offense to that
person.
The elements of a violation of a DWI refusal “school zone” offense are the same as a
DWI refusal offense with the additional requirement to prove:
! The offense occurred while on school property used for school purposes
owned by or leased to any elementary or secondary school or school board,
or within 1,000 feet of such school property, or driving through a school
crossing designated as such by ordinance, or driving through a school
crossing, knowing that juveniles are present.
DWI and DWI Refusal Offenses - Burdens of Proof
Because a DWI violation is treated, by the Court, as a quasi-criminal prosecution, every
element of a DWI offense must meet the evidentiary standard of “beyond a reasonable doubt.”
Romano v. Kimmelman, 96 N.J. 66, 89-90 (1984). In contrast, since a DWI refusal violation is
not treated as a quasi-criminal prosecution, it does not have to meet the higher evidentiary
standard for criminal conduct, beyond a reasonable doubt. The Legislature has determined that
proof of a violation of the DWI refusal statute is satisfied when the State presents evidence
meeting the preponderance of the evidence standard of proof. State v. Leavitt, 107 N.J. 534
(1987); State v. Widmaier, 157 N.J. 475 (1999).
DWI Without a Chemical Breath Test (Observational Offense)
In the case of a DWI violation, case law has long held that the beyond a reasonable doubt
standard can be met based exclusively upon the observational testimony of the arresting officer
that the defendant was operating a motor vehicle while intoxicated or under the influence. This
last element, while intoxicated or under the influence of alcohol or drugs, can be based upon the
officers testimony of his/her observations of the defendant, admissions by the defendant, field
sobriety tests, and the training and/or experience of the officer in dealing with intoxicated
persons. State v. Johnson, 42 N.J. 146, 165-166 (1964); State v. Guerrido, 60 N.J. Super. 505,
510 (App. Div. 1960); State v. Hudes, 128 N.J. Super. 589, 608 (Bergen Cty. Ct. 1974).
Moreover, a DWI conviction can be sustained on both direct and circumstance evidence, State v.
Emery, 27 N.J. 348, 355 (1958), as well as statements by a defendant and observations made by
police officers of defendant's behavior and actions, State v. Nemesh, 228 N.J. Super. 597 (App.
Div. 1988), certif. den. 114 N.J. 473 (1989).
A chemical breath test reading or result is not required to satisfy this aspect of a DWI
violation. Even in cases where the chemical breath test result are unavailable, either as a result of
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Prosecution of DWI & Refusal Violations
a refusal, inability to obtain a result, or where the result has been suppressed or otherwise deemed
inadmissible, an observational case can, and should, be capable of standing on its own merits.
A DWI case should not be dismissed by a prosecutor solely on the basis that there is, or
may be, an issue with the chemical breath test readings or results, and such a dismissal does not
fall within the scope of “good cause” under N.J.S.A. 2B:25-5c, or R. 7:8-5. State v. Fox, 249 N.J.
Super. 521, 526 (Law Div. 1991). Requests for a dismissal of a DWI prosecution invokes an
extreme remedy which should be sparingly used. See, State in Interest of D.J.C., 257 N.J. Super.
118, 121-123 (App. Div. 1992) and State v. Sapienza, 202 N.J. Super. 282, 287 (App. Div.
1985), certif. den. 102 N.J. 312 (1985). "Charges based on adequate evidence should not be
dismissed without good cause." IMO Norton & Kress, 128 N.J. 520, 538 (1992).
Even in those cases where the defense asserts a claim based upon a report from an “expert
witness,” a Municipal Prosecutor need not automatically concede that the report, or any
purported testimony from an “expert witness” is, or will be, dispositive in the resolution of the
case. In cases where a breath test reading has been obtained, our Supreme Court has strongly
counseled against the use of expert witnesses, particularly where the evidence does not remotely
suggest there is even a reason to suspect that the breath tests administered to the defendant were
not correct. State v. Downie, 117 N.J. 450, 468 (1990), cert. den. 498 U.S. 819, 111 S.Ct. 63,
112 L.Ed.2d 38 (1990); State v, Tischio, 107 N.J. 504, 517-518 (1987), app. dism. 484 U.S. 1038
(1987); State v. Hammond, 118 N.J. 306, 317 (1990); State v. Lentini, 240 N.J. Super. 330, 334-
336 (App. Div. 1990); State v. Maure, 240 N.J. Super. 269, 283 (App. Div. 1990), aff'd o.b. 123
N.J. 457 (1991). In State v. Johnson, supra, the Supreme Court determined that “[B]reathalyzer
test results are admissible upon a simple certification as to the operability and accuracy of the
[B]reathalyzer instrument used to perform the test. Id. at 171. [The court also] concluded that
expert testimony attacking the accuracy and reliability of [B]reathalyzer tests, while ‘probably
technically still admissible,’ had virtually no probative value. Ibid.” State v. Tischio, 107 N.J. at
517-518.
DWI With a Chemical Breath Test (Per se Offense)
Where a chemical breath test has been administered and results or readings were
obtained, a per se DWI violation can be proven by the State, using the same observations,
described above, and by also introducing the chemical breath test result or reading. The results
or readings obtained from chemical breath testing have been deemed to be admissible, as having
met the beyond a reasonable doubt standard of proof, if the State satisfies the standard of
evidence for the foundational evidentiary criteria of “no greater than clear and convincing
evidence.” Those foundational criteria are: (1) judicial notice of the scientific reliability and
accuracy of the chemical breath test instrument; (2) the Operator was properly trained; (3) the
Instrument was operating properly; (4) the Operator used the instrument in accordance with the
training. State v. Johnson, 42 N.J. at 170-171; Romano v. Kimmelman, 96 N.J. at 73, 86, 87-8,
93, 94.
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Prosecution of DWI & Refusal Violations
(1) Judicial Notice/Scientific Reliability
The issue of judicial notice of the scientific reliability of chemical breath testing
instruments, as a foundational criterion, has been settled, and is essentially no longer an issue in
dispute. See, N.J.A.C. 13:51-3.5(a)(1), and State v. Johnson, 42 N.J. at 170; Romano v.
Kimmelman, 96 N.J. at 82; State v. Tischio, 107 N.J. at 516, n.5, 517-8, 520; State v. Downie,
117 N.J. at 453, 457, 466-469 for photometric instruments [Breathalyzer®]. See, N.J.A.C. 13:51-
3.5(a)(2), and State v. Foley, et al., 370 N.J. Super. 341, 348, 351, 359 (Law Div. 2004) for infra-
red and electrochemical instruments, when used as a dual system of chemical breath testing
[Alcotest® 7110 MKIII-C]
(2) Operator properly trained
In general, proof of the status of a Breath Test Operator is obtained through the
introduction of the officer’s "replica" certificate. It is not necessary or required that the State
establish or prove facts behind the certification of the operator, particularly in the absence of
some relevant factual evidence from the defense that might bring the document into question.
State v. Maure, 240 N.J. Super. at 278-9.
Documents such as an "Operator's Certificate" and "replica" certificates are self
authenticating documents. State v. Cardone, 146 N.J. Super. 23, 28-29 (App. Div. 1976), certif.
den. 73 N.J. 3 (1977). N.J.R.E. §902. Furthermore there is a presumption, at law, that the
Attorney General as a public official does not act improperly in the exercise of official duties
such as the issuance of an "Operator's Certificate" or "replica" certificate. State v. Matulewicz,
101 N.J. 27, 31 (1985). Also N.J.R.E. §803(c)(8).
However, in the event there is any question regarding the certification status of an
Operator, the provisions of the Chemical Breath Testing Rules, at N.J.A.C. 13:51-1.14 and 13:51-
4.2(a)1 control. The Alcohol/Drug Test Unit, in the Division of State Police maintain records of
all Breath Test Operators and can, on request, provide a prosecutor with a “Master Certification”
record showing the official status of a law enforcement officer who has been trained and certified
as a Breath Test Operator.
(3) Instrument operating properly
Since Romano was decided, our Courts have held that "State Police Coordinator
certifications indicating that random sample ampoules from the same batch as that used in the
defendants' [B]reathalzyer examination have been tested satisfy the spot checking requirement."
State v. Maure, 240 N.J. Super. at 283; State v. Ernst, 230 N.J. Super. 238, 243-244 (App. Div.
1989), certif. den. 117 N.J. 40 (1990). Consequently, the pre-test and post-test certifications by
the Coordinator (N.J.A.C. 13:51-3.4) provides "prima facie proof the ampoules used in testing [a
defendant] were properly constituted," thereby assuring that the tests, if properly administered
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Prosecution of DWI & Refusal Violations
were reliable. State v. Garthe, 145 N.J. 1,13-14 (1996); State v. Cleverley, 348 N.J. Super. 455,
459 (App. Div. 2002). See, State v. Maure, 240 N.J. Super. at 286; State v. Sandstrom, 277 N.J.
Super. 354 (App. Div. 1994)
Proof of operability of a breath test instrument is considered sufficient upon presentation
of documentary evidence (e.g., Breath Testing Instrument Inspection Certificates) prepared by a
Breath Test Coordinator. State v. Garthe, 145 N.J. at 13-14; State v. Tischio, 107 N.J. at 514-
517; State v. Matulewicz, 101 N.J. at 29-31; State v. Cleverley, 348 N.J. Super. at 459; State v.
Maure, 240 N.J. Super. at 281, 286-289; State v. Ernst, 230 N.J. Super. at 243-244; State v.
Ettore, 228 N.J. Super. 25, 32 (App. Div. 1988); State v, Dickens, 130 N.J. Super. 73, 79 (App.
Div. 1974); State v. DeVito, 125 N.J. Super. 478, 479-480 (App. Div. 1973). See also, State v.
Samarel, 231 N.J. Super. 134, 141-142 (App. Div. 1989); State v. McGeary, 129 N.J. Super. 219,
224-228 (App. Div. 1974). Likewise, the periodic inspections of the breath test instruments
(N.J.A.C. 13:51-3.4), as reflected by the Breath Testing Instrument Inspection Certificates, have
been found to establish prima facie proof that the breath test reagent ampoules solution(s) have
been properly spot checked and randomly tested. State v. Maure, 240 N.J. Super. at 281-283 &
286-289.
Moreover, our courts have stated that Breath Test Instrument Inspection Certificates
(BTIIC’s), which are prepared pursuant to N.J.A.C. 13:51-3.4, are prepared accurately, carefully,
competently and have a "strong and convincing indices of trustworthiness." State v. Garthe, 145
N.J. at 13-14; State v. Cleverley, 348 N.J. Super. at 459; State v. McGeary, 129 N.J. Super. at
224-227; State v. Matulewicz, 101 N.J. at 30-31; State v. DeVito, 125 N.J. Super. at 479-480;
State v. Teare, 133 N.J. Super. 338, 341 (App. Div. 1975), rev'g. 129 N.J. Super. 562 (Law Div.
1974), aff'd. 135 N.J. Super. 19 (App. Div. 1975); State v. Ettore, 228 N.J. Super. at 31-32; State
v. Ernst, 230 N.J. Super. at 243-244; State v. Lanahan, 110 N.J. Super. 578, 580-583 (Cty. Ct.
1970); State v. Hudes, 128 N.J. Super. at 591-595, 596-598.
In that same context, the BTIIC, and the Alcohol Influence Report both constitute records
of a public official, performed in an official capacity. Thus, those documents are subject to
mandatory judicial notice under N.J.R.E. §201 as official public records prepared and maintained
by a public official under N.J.R.E. §803(c)(8) & N.J.A.C. 13:51-4.3(b). Therefore, they are
admissible as records of a public official, pursuant to N.J.R.E. §803(c)(8). State v. Garthe, 145
N.J. at 13-14; State v. Cleverley, 348 N.J. Super. at 459. The same rationale holds for documents
such as an "Operator's Certificate" and "replica" certificates which are self authenticating
documents. State v. Cardone, 146 N.J. Super. at 28-29. N.J.R.E. §902.
Consequently, information contained on those documents, such as the name and serial
number of the chemical breath test instrument, its location, the results of the tests performed,
including the identification of the breath test ampoules used in the testing, become part of the
record.
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Prosecution of DWI & Refusal Violations
(4) Operator used the instrument in accordance with his/her training
This element of the foundational criteria is ordinarily fulfilled through the testimony of
the Breath Test Operator that he/she followed the steps on the Alcohol Influence Report Check
List for tests administered on a photometric breath test instrument, or in the case of the Alcotest
7110 MK III-C, the Operator testifies that he/she followed all of the steps to administer a
chemical breath test on that instrument and authenticates the Alcohol Influence Report for that
defendant’s tests.
DWI With a Blood Test (Per se Offense)
Where a sample of blood has been drawn from a defendant and results or readings were
obtained, a per se DWI violation can be proven by the State, using the same observations
described above and by also introducing the laboratory report containing the blood test results.
The proofs for the admissibility of blood test results, while similar to those for chemical
breath testing, will require some additional documentation. As with chemical breath test results,
the results or readings obtained from blood tests have been deemed to be admissible, as having
met the beyond a reasonable doubt standard of proof, if the State satisfies the standard of
evidence for the foundational evidentiary criteria of “no greater than clear and convincing
evidence.” Those foundational criteria are: (1) judicial notice of the scientific reliability and
accuracy of the instrument used to analyze or test the blood sample; (2) the lab technician was
properly trained; (3) the instrument used for the analysis or testing was operating properly; (4)
the lab tech used the instrument in accordance with their training.
In addition, the State will also be required to establish that the blood sample was drawn in
a medically acceptable manner, by a person qualified to perform that function. If the police
officer observed the blood sample being drawn by another person, such as a medical
professional, it is not required that the medical professional appear and testify. Nor is it required
that the medical professional comply with the affidavit provisions of N.J.S.A. 2A:62A-10 or -11.
State v. Casele, 198 N.J. Super. 462, 467-8 (App. Div. 1985), citing with approval State v.
Rypkema, 191 N.J. Super. 388, 392-3 (Law Div. 1983); State v. Burns, 159 N.J. Super. 539, 544
(App. Div. 1978); State v. Woomer, 196 N.J. Super. 583, 585-7 (App. Div. 1984).
A defendant has no right to refuse to allow blood to be drawn as long as the police or law
enforcement officer has probable cause to believe that the blood sample will contain evidence of
alcohol and/or drugs. Reasonable force to obtain a blood sample may be used, subject to the
limitations set forth in State v. Ravotto, 169 N.J. 227, 250-1 (2001), rev’g. 333 N.J. Super. 247
(App. Div. 2000).
When a defendant, in a DWI prosecution, was also the victim of some injury sustained in
a motor vehicle accident, the defendant’s blood is often drawn by hospital personnel for medical
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Prosecution of DWI & Refusal Violations
purposes. The results of any analysis done by the hospital is generally protected by the
Physician-Patient privilege. N.J.R.E. §506(b). In the event that there is an evidentiary need for
the results of blood analysis, performed by a hospital for non-evidential purposes, on a blood
sample taken from a defendant who has been charged with DWI, those results may be obtained
by use of a subpoena duces tecum. A Subpoena duces tecum can be issued by a Judge of a
Municipal Court upon a showing that the police have a reasonable basis to believe that the
defendant was operating a motor vehicle while under the influence of alcohol or drugs. State v.
Dyal, 97 N.J. 229 (1984). Those results may be entered into evidence under N.J.R.E. §803(c)(6).
The issue of judicial notice of the scientific reliability of the instruments used to test a
blood sample, as a foundational criterion, has been settled, and is no longer an issue in dispute.
State v. Blair, 45 N.J. 43 (1965) relying on State v. Alexander, 7 N.J. 585 (1951), cert. den. 343
U.S. 908 (1952). Likewise, the admissibility of blood test results is no longer in dispute, since
blood has been deemed non-testimonial (State v. Oliveri, 336 N.J. Super. 244 (App. Div. 2001);
State v. Weller, 225 N.J. Super. 274, 281-282 (Law Div. 1986) on remand from State v. Flynn,
103 N.J. 446 (1986) relying upon the holding in State v. Matulewicz, supra.) and it does not rise
to the level of a Constitutional issue. See, Breithaupt v. Abrams, 352 U.S. 432 (1957), 77 S.Ct.
408, 1 L.Ed.2d 448 (1957) and Schmerber v. Calif., 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966), both of which have been adopted by the decisional law of New Jersey. Moreover, blood
test analysis is not subject to the requirements set forth in State v. Simbara, 135 N.J. 37 (2002) on
the grounds that the laboratory analysis documents pertaining to the testing of blood for the
presence of alcohol are not proffered under the provisions of N.J.S.A. 2C:35-19 and, unlike the
analysis of CDS, our Courts have determined that the analysis of blood for the presence of
alcohol does not require the presence of the lab technician to authenticate or testify to the
analysis processes. Ibid
DWI Refusal
To prove a DWI refusal violation the evidentiary standard is the preponderance of the
evidence. In general, the proofs are met based upon the testimony of the arresting officer of
his/her observations that the defendant was operating a motor vehicle, the defendant had been
arrested for a DWI violation, the officer read the defendant the Standard NJ MVC (Refusal)
Statement, and the defendant refused to submit to chemical breath testing.
Prosecution of DWI and DWI Refusal Offenses
The prosecution of a DWI and/or a DWI Refusal offense requires that the State must be
prepared to meet and satisfy each and every element of the offense charged to the required
burden of proof. In those situations where a prosecutor concludes that the evidence does not
meet the required evidentiary burdens, then the prosecutor must make a determination as to how
to most appropriately resolve the case. Where the evidence is deemed sufficient by the
prosecutor, prosecutors should be prepared to present the case to the court where the evidence
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Prosecution of DWI & Refusal Violations
will be reviewed and a judicial determination made on its sufficiency. Prosecutors should not
automatically dismiss a DWI case solely because the chemical breath test results or blood test
results may have been excluded. A DWI violation can, and should be provable based on the
observational testimony of the police officer. See cases cited supra, under “DWI Without a
Chemical Breath Test (Observational Offense).”
The State should be represented, by the Municipal Prosecutor, at every stage of a case:
pre-trial discovery or motions; trial; a guilty plea; or a guilty plea on a plea bargain or on a
conditional plea of guilty. This applies equally at the sentencing phase. The appearance of the
State will assure that there is adequate compliance with Constitutional requirements, the
requirements for the imposition of mandatory sentences, and compliance with Court Rules. It
will also enable the prosecutor to ensure that there is an adequate record. These requirements
become even more important, where a defendant has chosen to appear pro se.
In addition, as a result of the holding in State v. Reiner, 180 N.J. 307 (2004), in order for
the State to prevail and obtain the mandatory enhanced penalties for a DWI offense in a school
zone, two requirements must be met.
First, it is necessary for the law enforcement officer to have charged the defendant, on the
Complaint/Summons (Uniform Traffic Ticket) with a violation of N.J.S.A. 39:4-50(g). Similarly,
for a DWI refusal violation in a school zone, the police or law enforcement officer should have
charged the defendant with a violation of N.J.S.A. 39:4-50.2a, specifying that the offense
occurred in a school zone, thereby subjecting the defendant to the penalties as set forth at
N.J.S.A. 39:4-50.4a.b.
Second, in school zone cases, there are additional elements, beyond the basic DWI or
DWI refusal, that the State must prove to sustain a conviction. They include: (1) the violation
occurred (a) on school property used for school purposes, (b) the property is owned or leased to
an elementary or secondary school or a school board, (c) or within 1,000 feet of such school
property; or (2) driving through a school crossing, if that crossing is designated as such by
ordinance or resolution; or (3) driving through a school crossing, knowing juveniles are present.
The statute permits a map depicting the location and boundaries within 1,000 feet of school
property, under the provisions of N.J.S.A. 2C:35-7. The statute also precludes the use of a
defense that the defendant was unaware he/she was within 1,000 feet of school property or a
school zone. Nor is it deemed relevant that juveniles were or were not present or that the school
was not in session at the time of the offense. See, P.L.1999, c.185.
Guilty Plea to Charge(s) as Filed
A defendant always has the option of entering plea of guilty to the charges as filed, under
the provisions of R. 7:6-2(a)(1). However, it is important that the State be represented in these
situations, in order to assure that the proper sentence is imposed by the Court, that the Court has
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Prosecution of DWI & Refusal Violations
5
Cert. den. Laurick v. N.J., 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed.2d 413 (1990).
addressed “the defendant personally” and that the Court has determined “by inquiry of the
defendant ... that the plea is made voluntarily with the understanding of the nature of the charge
and the consequence of the pleas and that there is a factual basis for the plea.” Ibid. Of
particular significance is the necessity for the Court to advise the defendant of the consequences
of pleading guilty, such as the penalties that can imposed. State v. Laurick, 120 N.J. 1, 10
(1990), rev’g 231 N.J. Super. 464 (App. Div. 1989),5 citing State v. Kovack, 91 N.J. 476 (1982).
See, State v. Manzie, 168 N.J. 113 (2001); State v. Smith, 109 N.J. Super. 9 (App. Div. 1970),
certif. den. 56 N.J. 473 (1970). The presence of the prosecutor can assist the Court in its
compliance with the requirements of this Court Rule. In the event the Court may overlook any of
these requirements, the prosecutor is in a position to remind the Court.
Where a defendant has chosen to appear pro se, compliance with these requirements are
even more important, in the event the defendant chooses to file an appeal or a PCR. Consistent
with newly adopted provisions in the Appendix to Part VII of the Court Rules (“Guidelines for
Determination of Consequence of Magnitude (See R. 7:3-2)), and the holding in State v. Laurick,
120 N.J. at 6, 8-9, citing Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971), a pro se defendant is
entitled to representation when he/she faces a consequence of magnitude.
A defendant who elects to proceed pro se, must knowing and intelligently waive his/her
right to counsel. Thus, where a defendant is appearing pro se, and elects to enter a guilty plea, in
addition to the requirements at R. 7:6-2(a)1, there should be, on the record, a waiver of the right
to counsel, i.e., that the pro se defendant knew he/she had a right to counsel, and that he/she
elected not to avail him/herself of that right with a full understanding of the implications of
entering a guilty plea. See, In re Palumbo, 58 N.J. Super. 80 (App. Div. 1959). See also, State v.
Melendez, 165 N.J. Super. 182 (App. Div. 1979).
In the event a defendant wishes to enter a guilty plea, or to resolve parts of the matter
through a plea agreement pursuant to the discussion infra, the Municipal Prosecutor must verify
the existence of any collateral legal proceedings. Double jeopardy applies not only to dual
prosecutions for the same offense, but also to prosecutions for a lesser offense, after conviction,
dismissal for successful PTI participation, or acquittal of a greater offense and to prosecutions for
a greater offense after conviction or acquittal of a lesser offense. State v. Calvacca, 199 N.J.
Super. 434 (App. Div. 1985). This applies to motor vehicle offenses as well as criminal offenses.
State v. Dively, 92 N.J. 573 (1983). Therefore, prior to consenting to the dismissal or downgrade
of a DWI offense, for any reason, or to commencing prosecution when the defendant has
represented that they will plead guilty, the Municipal Prosecutor should obtain a representation,
on the record, from the defendant, that there is currently no collateral legal proceedings, whether
criminal, quasi-criminal or civil, pertain to the subject matter or facts upon which the DWI
offense if based. Furthermore, the Municipal Prosecutor should consult with the arresting officer
Attorney General Guideline: Page 13
Prosecution of DWI & Refusal Violations
to confirm this fact. If there is any doubt as to the existence of a collateral legal proceeding, the
Municipal Prosecutor should seek an adjournment and further consult with the County
Prosecutor for guidance.
Plea Agreements or Plea Bargains
The New Jersey Supreme Court has established its own Guidelines with respect to
negotiated pleas (i.e., plea bargains) in the Municipal Courts. Plea bargains in the Municipal
Courts are governed, initially by R. 7:6-2(d), but are also supplemented by “Guidelines for
Operation of Plea Agreements” in an Appendix to Part VII of the Rules Governing the Courts of
the State of New Jersey. Plea bargains, in the Superior Court, Law Division, are governed by a
separate body of Court Rules: R. 3:9-2.
The Municipal Court Guidelines, however, contain certain limitations with respect to the
disposition of DWI and DWI refusal offenses in the Municipal Courts. The relevant provisions
of the Limitations, as set by the Supreme Court are as follows:
Guideline 4. Limitation
No plea agreements whatsoever will be allowed in
drunken driving or certain drug offenses.
A. Driving while under the influence of liquor or drugs
(N.J.S.A. 39:4-50)
. . .
If a defendant is charged with driving while under the
influence of liquor or drugs (N.J.S.A. 39:4-50) and refusal to
provide a breath sample (N.J.S.A. 39:4-50.2) arising out of the
same factual transaction, and the defendant pleads guilty to the
N.J.S.A. 39:4-50 offense, the judge, on recommendation of the
prosecutor, may dismiss the refusal charge.
. . .
Nothing contained in these limitations shall prohibit the
judge from considering a plea agreement as to the collateral
charges arising out of the same factual transaction connected with
any of the above enumerated offenses in Sections A and B of this
Guideline.
The judge may, for certain other offenses subject to
minimum mandatory penalties, refuse to accept a plea agreement
unless the prosecuting attorney represents that the possibility of
conviction is so remote that the interests of justice requires the
Attorney General Guideline: Page 14
Prosecution of DWI & Refusal Violations
6
See, State v. Greeley, 178 N.J. 38 (2003) discussing R. 7:6-2 and the “practice of
pleading guilty with a reservation,” when the issue involved is rooted in a motion to suppress, R.
3:5-7; 7:5-2. Id. at 50-1.
acceptance of a plea to a lesser offense.
Plea Agreement Guideline as adopted 7-28-2004, effective 9-1-
2004.
The Supreme Court Plea Agreement Guidelines only apply to two specific offenses: DWI,
N.J.S.A. 39:4-50 and DWI refusal, N.J.S.A. 39:4-50.2 and 39:4-50.4a. They do not apply to other
DWI or DWI refusal offenses referenced in the definitions for this Guideline.
In any situation where a prosecutor, in a Municipal Court proceeding, intends to engage
in plea bargaining, subject to the Limitations imposed by the Supreme Court, the prosecutor must
consider other obligations associated with plea negotiations.
First, and foremost, the prosecutor must place on the record the terms and conditions of
any plea agreement, and there must be a factual basis which supports any charge or charges to
which the defendant intends to plead guilty. Finally, the Court Rules (R. 3:9-2 & 7:6-2(a) & (d))
require that the defendant must be personally addressed by the Court and the defendant must
acknowledge he/she is represented by counsel or knowingly waives the right to counsel, admit,
on the record, to the facts supporting the charge for which a guilty plea is being entered.
Also, a plea to a violation of an ordinance, when the underlying charge or charges are
governed by State statutes is not permitted. State (Tp. of West Orange) v. Paserchia, 356 N.J.
Super. 461 (App. Div. 2003).
In addition, prosecutors must adhere to the requirements of R. 7:6-2(d)(3) that the
complaining witness (police or law enforcement officer, or private citizen) and the victim are
present in court, and have been “consulted about the agreement,” and, where applicable the
provisions of N.J.S.A. 39:4-50.12, where a victim suffered injuries, as defined in the statute.
Conditional Guilty Pleas
R. 7:6-2(c) permits, with the consent of the prosecuting attorney, a defendant to enter a
“conditional plea of guilty.” However, it is strongly recommended that where this provision is
employed, that prosecutors, on the record, elicit from the defendant the factual predicates in
support of the “conditional plea of guilty,” and the precise offense for which a “conditional plea
of guilty” is being entered.6 This recommendation becomes relevant in the event of an appeal or
a PCR application.
Attorney General Guideline: Page 15
Prosecution of DWI & Refusal Violations
7
These tables were developed from a review of the applicable statutes, case law, and the
Minimum Mandatory Fines & Penalties Schedule, Nov. 19, 2001, as prepared by the AOC.
8
“Whenever a person is charged with a violation of R.S.39:4-50 section 2 of P.L.1981, c.
512 (C.39:4-50.4a), a municipal prosecutor shall contact the New Jersey Motor Vehicle
Commission by electronic or other means, for the purpose of obtaining an abstract of the person's
driving record. In every such case, the prosecutor shall:
a. Determine, on the basis of the record, if the person shall be charged with
(continued...)
Where a defendant wishes to challenge an element of the per se offense, through the use
of a conditional guilty plea, a prosecutor should still present and place on the record all of the
evidence in support of the charge or charges, or obtain a stipulation, from the defendant, as to all
of the elements of the observational offense.
Amendment or Dismissal of DWI or DWI Refusal Cases
On December 2, 2004, the Acting Administrative Director of the Courts, issued the
attached Memorandum to all Municipal Court Judges which contains a recommended series of
sample questions that a Municipal Court Judge should consider asking of a Municipal Prosecutor
who proposes to amend or dismiss a DWI summons. These sample questions were developed by
the conference of Presiding Municipal Court Judges “to establish a record and thereby prevent an
improper dismissal or amendment of a N.J.S.A. 39:4-50 charge.” Thereafter, on December 10,
2004, a memorandum, from the Prosecutors Supervision & Coordination Bureau, was sent to All
County Prosecutors for distribution to All Municipal Prosecutors to inform them of the AOC
Memorandum and of their responsibilities with respect to dispositions of this nature. Municipal
Prosecutors should familiarize themselves with the legal principles pertaining to dismissals and
amendments of DWI charges as discussed in the Prosecutors Supervision & Coordination Bureau
Memorandum.
Sentencing
Where the State is successful in obtaining a guilty verdict, either by trial on the merits or
by a guilty plea, the prosecutor must assure that the proper sentence is imposed for that offense.
Prosecutors should familiarize themselves with the provisions, as set by the Legislature, for the
various mandatory sentences to be imposed for violations of the DWI and DWI refusal statutes.
As a guide, a table of the sentencing provisions of these, and related statutes, as of the date of this
Guideline, are attached.7
With the enactment of P.L. 2004, c. 95, adopted 7-9-2004, eff. 11-1-2004, N.J.S.A.
2B:25-5.1,8 Municipal Prosecutor must obtain the driver abstract from the NJ Motor Vehicle
Attorney General Guideline: Page 16
Prosecution of DWI & Refusal Violations
8
(...continued)
enhanced penalties as a repeat offender; and
b. Transmit the abstract to the appropriate municipal court judge prior to the
imposition of sentence.”
9
The holding in State v. Laurick, supra, with respect to enhancing sentences, has been
abrogated by Nichols v. U.S., 511 U.S. 738, 742, n.7, 748-9, 114 S.Ct. 1921, 1925, n.7, 1927-8,
128 L.Ed.2d 745 (1994).
Commission (NJ MVC) for presentation to the court for sentencing in all DWI and DWI Refusal
cases.
An illegal sentence, particularly in a DWI or DWI refusal matter, can be corrected at any
time. State v. Nicolai, 287 N.J. Super. 528, 531-2 (App. Div. 1996), disapproving State v.
Decher, 196 N.J. Super. 157 (Law Div. 1984). See, State v. Burroughs, 349 N.J. Super. 225,
227-8 (App. Div. 2002).
The Supreme Court Guidelines for Plea Agreements, permits, with the consent of the
prosecutor, that a DWI refusal can be dismissed in exchange for a guilty plea to a DWI offense.
But, those provisions apply only to a dismissal of a DWI refusal (N.J.S.A. 39:4-50.2a)
accompanied by a plea of guilty to the underlying DWI (N.J.S.A. 39:4-50) offense, and do not
otherwise contradict or nullify the other statutory requirements regarding non-merger of
sentences. In addition, sentences for second or subsequent DWI refusal convictions must run
consecutively to any other sentence. The Legislative intent for the enhanced sentencing for DWI
refusal is intentional. State v. Tekel, 281 N.J. Super. 502, 507 (App. Div. 1995); State v.
Fielding, 290 N.J. Super. 191, 193-4 (App. Div. 1996); State v. Widmaier, 157 N.J. at 488.
Finally, in those cases where a defendant is subject to the enhanced penalties as a second,
third or subsequent offender, any challenge to the defendant’s prior convictions can only be
made in the Court where the prior conviction was entered. R. 7:10-2(a); State v. Laurick, 120
N.J. at 11-12. The Court where the defendant is currently found guilty or has entered a plea of
guilty to a DWI or DWI refusal violation, does not have jurisdiction to review or otherwise rule
upon the validity of any prior conviction or any penalties imposed in connection with that
conviction. This applies equally to any administrative suspensions imposed by NJMVC. State v.
Laurick, 120 N.J. at 13, 17.9 In such cases, a Court should impose the sentence based upon the
prior record, as it is at the time of conviction. See, N.J.S.A. 2B:25-5.1, requiring Municipal
Prosecutors to review motor vehicle abstracts of DWI offenders and present that information to
the Court. If a defendant is successful in a later PCR application regarding the prior sentence,
then the defendant can move for re-sentencing. Cf., State v. Haliski, 140 N.J. 1 (1995) (Graves
Act sentence to be imposed until a defendant’s conviction is otherwise found deficient.)
Attorney General Guideline: Page 17
Prosecution of DWI & Refusal Violations
10
The Appellate Division has refused to recognize HGN as being scientifically reliable
and acceptable, thus allowing its admissibility, without foundational testimony , i.e. a Frye
hearing in the trial court. State v. Doriguzzi, 334 N.J. Super. at 533. The Appellate Court also
refused to recognize the findings made by a Law Division Judge, in State v. Maida, 332 N.J.
Super. 564 (Law Div. 2000), following a Frye hearing. In that case the Law Division Judge
found that HGN was scientifically reliable and generally accepted in the scientific community,
and therefore, admissible. State v. Maida, 332 N.J. Super. at 572-3.
Observation of a Violation, Arrest and Processing of a Defendant
The usual circumstances attendant upon a DWI or DWI refusal arrest include that a law
enforcement officer will have observed the operator in the act of operating the vehicle or vessel
in a manner suggesting or indicating intoxication or other impairment. However, circumstances
may arise where the observation component may not be possible: e.g., an accident scene, or an
encounter at a location where the vehicle or vessel is not moving, but the location is such that
operation is inferred (e.g., one car motor vehicle accident, vehicle parked on the side of a limited
access roadway, vehicle parked in a rest area, with or without the motor running.)
Once the vehicle has been stopped, the officer will generally continue to observe the
operator. If the officer, based upon their training and experience, suspects the operator is
intoxicated or under the influence of alcohol or drugs, then the officer will request the operator to
exit the vehicle. Once the operator is out of the vehicle, the officer will generally request the
operator to perform field sobriety tests. Where possible, the use of uniform field sobriety testing
procedures by police officers is preferred. For those officers with the requisite training, they will
generally employ the Standard Field Sobriety Testing [SFST] methods, as taught in the Division
of State Police 5-day training course, “Driving While Intoxicated Course/Standardized Field
Sobriety Testing [SFST].”
Subject to a limitation, set forth in State v. Doriguzzi, 334 N.J. Super. 530 (App. Div.
2000), Standardized Field Sobriety Testing [SFST] can be used to establish the requisite proofs
necessary in an observational prosecution. The limitation in Doriguzzi, pertains to the use of
only one of the four SFST’s, the Horizontal Gaze Nystagmus [HGN] test.10 State v. Doriguzzi,
334 N.J. Super. at 533. HGN can, however, be utilized as part of the observations of the police
officer which form the totality of circumstances giving rise to the probable cause necessary to
arrest the defendant for DWI and to subject the defendant to the provisions of the Implied
Consent Statutes.
Upon a determination by the law enforcement officer that there is sufficient probable
cause to believe the operator of the vehicle or vessel is intoxicated, under the influence of alcohol
or drugs, or has a blood alcohol or alcohol concentration at, or above, the per se limit set by the
statute, the officer will place the operator under arrest and advise the operator of his/her Miranda
Attorney General Guideline: Page 18
Prosecution of DWI & Refusal Violations
11
As presently drafted, none of the provisions in the Implied Consent Laws apply to the
taking of blood, urine or other bodily substance samples. Case law controls the criteria to be
used by police for determining that blood or other bodily fluid samples should be drawn, the
manner and methods by which it is to be drawn.
rights as required under the holding in State v. Wright, 107 N.J. 488 (1987).
The Implied Consent Laws
As a matter of law, no person may legally refuse to submit to chemical breath testing.
Refusal to submit to chemical breath testing constitutes a separate offense under one of the
following statutes: N.J.S.A. 39:4-50.4a; 39:3-10.24f; 12:7-55f. The implied consent statute
becomes operative as a result of a police or law enforcement officer having arrested the operator
for a violation of N.J.S.A. 39:4-50 (DWI), N.J.S.A. 39:3-10.13 (CDL/DWI), or N.J.S.A. 12:7-46
(OVWI).
While it is unlawful for a person to refuse to submit to chemical breath testing, it is also
noted that a chemical breath test cannot be forcibly taken or compelled. See, N.J.S.A. 39:4-
50.2(e); 39:3-10.24e; and 12:7-55e. These statutory requirements, however, are merely a
reflection of the fact that a chemical breath test requires the active participation and cooperation
of the defendant.11
A refusal to submit to chemical breath testing is a non-criminal offense which permits the
State to prove a violation of the offense by meeting and satisfying the preponderance of the
evidence standard of proof. Penalties for refusing to submit to chemical breath testing are
substantial and are to be imposed in addition to any other penalties imposed for a violation of the
DWI statute. The sentences for DWI and refusal are mandatory and may not be merged. State v.
Widmaier, 157 N.J. at 496, 498-9.
The legislative purpose for enacting the Implied Consent statutes is reflected by the
following statement “that the Implied Consent Law is a strong disincentive to driving while
intoxicated.” State v. Widmaier, 157 N.J. at 488.
The purpose of the Implied Consent statutory scheme is “to encourage motorists
suspected of driving under the influence to submit to [B]reathalyzer tests.” State v. Widmaier,
157 N.J. at 487.
The need to obtain chemical breath test evidence, in a prompt manner, due to the speed
with which alcohol is dissipated by the body is also discussed.
Attorney General Guideline: Page 19
Prosecution of DWI & Refusal Violations
Breath samples are a nontestimonial form of evidence.
State v. Macuk, 57 N.J. 1, 14 (1970). Accordingly, a defendant
does not have a Fifth Amendment right to consult with an attorney
before taking the test, nor does a defendant have a right to have an
attorney present when the test is performed. State v. Leavitt, 107
N.J. 534, 536, 540 (1987); see also, Macuk, supra, 57 N.J. at 16,
(holding that police officers are not required to give defendants
Miranda warnings prior to administration of [a B]reathalyzer test
because "fundamental reason for the Miranda rules is just not
present"). Additionally, because breath sample evidence "is
evanescent and may disappear in a few hours," State v. Dyal, 97
N.J. 229, 239 (1984), police must administer the [B]reathalyzer test
within a reasonable time after the arrest in order to obtain an
accurate reading. Leavitt, supra, 107 N.J. at 541; see also, State v.
Pandoli, 109 N.J. Super. 1, 4 (App. Div.1970) (noting "rapidity
with which the passage of time and physiological processes tend to
eliminate evidence of ingested alcohol in the system"); State v.
Corrado, 184 N.J. Super. 561, 568 (App. Div.1982) (holding
one-hour delay in consenting to take [a B]reathalyzer test violated
Implied Consent Law).
State v. Widmaier, 157 N.J. at 487-8.
Fulfilling the Statutory Requirements for Implied Consent by Law Enforcement
While at the law enforcement facility, the defendant should also be continuously
observed. In addition, during the observation period, and prior to the administration of any
chemical breath testing, the provisions of N.J.S.A. 39:4-50.2, N.J.S.A. 39:3-10.24a through e, or
N.J.S.A. 12:7-55, regarding implied consent, must have been followed.
Those statutory provisions are:
#1 The police or law enforcement officer “shall inform the person
tested of his[/her] rights” to be furnished with a copy of the record
of any chemical breath tests administered.
This first provision is designed to inform the defendant that a record of any chemical
breath tests administered will be made and that the defendant is entitled to receive a copy of that
record. N.J.S.A. 39:4-50.2(b); N.J.S.A. 39:3-10.24b; N.J.S.A. 12:7-55b. That record, pursuant to
N.J.A.C. 13:51-3.6(a)2, is the “Alcohol Influence Report Form, Breathalyzer Check List.”
N.J.A.C. 13:51 Appendix. With the introduction of the Alcotest® 7110 MKIII-C, a printed
record, in the form of an Alcohol Influence Report, will be automatically printed by the
Attorney General Guideline: Page 20
Prosecution of DWI & Refusal Violations
12
For those municipalities which have elected to enact an ordinance under the provisions
of John’s Law II, P.L.2003,c.164, permitting local law enforcement to hold a DWI defendant in
(continued...)
Alcotest® 7110 MKIII-C. N.J.A.C. 13:51-3.6(c)2.
Following the administration of any breath tests, regardless of the results obtained, and
the normal processing of a defendant, the defendant should be given a copy of the Alcohol
Influence Report.
#2 The person “shall be permitted to have such samples taken and
chemical tests of his[/her] breath, urine or blood made by a person
or physician of his own selection.”
This second provision is designed to inform the defendant of his/her statutory right to
obtain an independent test of their own breath, blood or urine. N.J.S.A. 39:4-50.2(c); N.J.S.A.
39:3-10.24c; N.J.S.A. 12:7-55c. State v. Jalkiewicz, 303 N.J. Super. 430, 432, 434, 435 (App.
Div. 1997), questioning State v. Broadley, 281 N.J. Super. 230 (Law Div. 1992), certif. den. 135
N.J. 468 (1994); State v. Hicks, 228 N.J. Super. 541, 544 (App. Div. 1988), certif. den. 127 N.J.
324 (1990); State v. Ettore, 228 N.J. Super. at 30-1.
Moreover, case law supports the proposition that the police do not have an affirmative
obligation to transport, or arrange transportation for a DWI defendant, following the
administration of the breath tests and issuance of a summons. State v. Ettore, 228 N.J. Super. at
30-31; State v. Weber, 220 N.J. Super. 420, 424 (App. Div. 1987), certif. den. 109 N.J. 39
(1987); State v. Hudes, 128 N.J. Super. at 606. Likewise, the police do not have an affirmative
obligation to arrange for, or consent to, independent tests to be performed by a non-police agency
such as a hospital. State v. Weber, 220 N.J. Super. at 424; State v. Ettore, 228 N.J. Super. at 31;
State v. Hudes, 128 N.J. Super. at 606. Cf., State v. Hicks, 228 N.J. Super. at 550. These cases
effectively stand for the proposition that the police cannot impermissibly interfere with a
defendant’s attempts to obtain an independent test. State v. Greeley, 178 N.J. 38, 43-5 (2003).
In addition, the fact that a hospital may refuse to perform such tests with or without police
consent cannot be held against the State. State v. Weber, 220 N.J. Super. at 424; State v. Ettore,
228 N.J. Super. at 31; State v. Hudes, 128 N.J. Super. at 606.
With the adoption of “John’s Law,” P.L.2001, c.69, N.J.S.A. 39:4-50.22 & 39:4-50.23,
the ability of a defendant to secure an independent test may be somewhat restricted, but that
restriction should not be viewed as police interference. What the statute requires is that another
person accept responsibility for the defendant before the defendant can be released. Once a
defendant is released under the provisions of “John’s Law” the defendant is free to take whatever
steps he/she may chose to obtain an independent test.12 “[A] policy of releasing an intoxicated
Attorney General Guideline: Page 21
Prosecution of DWI & Refusal Violations
12
(...continued)
custody for up to 8 hours, law enforcement personnel in those municipalities will have to consult
the Municipal Attorney or Solicitor for legal advice or guidance on this matter.
13
The Greeley decision does not specifically mention John’s Law because Mr. Greeley
was arrested in Feb. 1998, prior to the adoption of P.L.2001, c.69. The case does, however,
discuss John’s Law II, P.L.2003, c.164. State v. Greeley, 178 N.J. at 48-9.
DWI arrestee only to persons responsible for the arrestee's conduct strikes a proper balance
between the right to an independent BAC test and the continuing duty of the police to safeguard
the public.” State v. Greeley, 178 N.J. at 48-9.13
#3 “[t]he police officer shall, however, inform the person arrested of
the consequences of refusing to submit to such test ...”
Every person who receives a license to operate a motor vehicle in New Jersey, and in
every other State, by virtue of applying for, taking the written and driving tests, and accepting the
driver’s license, has already given their implied consent to submit to chemical breath testing.
However, the act of being licensed is not, in and of itself, an element of a DWI refusal violation.
The violation is operating a motor vehicle and refusing to submit to chemical breath testing,
when so requested by the police or law enforcement officer.
This third provision, again informs the defendant that refusing to submit to chemical
breath testing will, upon conviction, result in the imposition of additional penalties, beyond any
penalties imposed for a DWI conviction. N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:3-10.24e; N.J.S.A.
12:7-55e. This provision also addresses the issue of a defendant’s right to speak with an
attorney, as well as the “confusion” defense. See, State v. Leavitt, supra. This component, is
fulfilled, by the fourth provision, discussed, infra.
#4 “A standard statement, prepared by the [NJ Motor Vehicle
Commission,] Chief Administrator shall be read by the police
officer to the person under arrest.”
This fourth provision, fulfills the statutory requirements at N.J.S.A. 39:4-50.2(e); N.J.S.A.
39:3-10.24e; N.J.S.A. 12:7-55e. A law enforcement officer accomplishes this provision by
reading the applicable Standard (Refusal) Statement to a defendant, prior to the administration of
any chemical breath tests. The Legislature has mandated that these Standard (Refusal)
Statements, prepared by the NJMVC Chief Administrator, be “read to the defendant.” State v.
Widmaier, 157 N.J. at 489. Therefore, they must be read, exactly as written. Copies of the most
recently approved Standard Statements are included in the Appendix to this Guideline.
Attorney General Guideline: Page 22
Prosecution of DWI & Refusal Violations
The essential key, is that the legislative mandate requires that the police officer be the
person who reads the Standard Statement to the defendant. Giving or handing the Standard
Statement to the defendant to read for him or herself will not suffice as complying with the
statutory mandate that the officer read it to the defendant. State v. Widmaier, 157 N.J. at 489.
In addition, the Standard Statement contains a recitation of the range of the statutory
penalties which a court will impose, if the defendant is found guilty. Therefore, police and law
enforcement officers must strictly comply with the statutory requirements that the Standard
Statement, as approved by the NJ MVC Chief Administrator, be read, as written, to the
defendant. Deviation from, or variation of, the exact language of the Standard Statement, for
whatever reason, could be viewed by a Court as non-compliance with the statutory requirements.
However, in a circumstance where, due to inadvertence or mistake, a law enforcement
officer reads a Standard Statement that is not the current Standard Statement, such an error
should not result in the dismissal of the DWI refusal charge. The key factor is that a Standard
Statement was read to the defendant, albeit one that has been revised or replaced.
A review of the Standard Statements which preceded the current Standard Statement
reveals that they all contain the essential elements required under the statute: i.e., informing the
defendant that he/she must take the tests; informing the defendant that a copy of the breath test
results will be provided; informing the defendant of their right to an independent test; and
informing the defendant of the consequences of refusing to take the tests. With each successive
revision of the Standard Statements, other than the revisions made in 1987 to conform to the
recommendation of the Supreme Court in State v. Leavitt, 107 N.J. at 542, it is only this last
element that has been revised, to conform to changes in the penalties for refusal. Thus, where a
law enforcement officer has read an incorrect Standard Statement, the prosecutor should
represent to the Court that the incorrect Standard Statement was read, and therefore, in the
interests of fairness, the State would only ask the Court, upon a verdict of guilty, to impose the
penalties recited in that Standard Statement, rather than the penalties currently required by law.
Such a position is fully consistent with the intention of the statutory scheme while not seeking to
overreach with regard to penalties. Every effort should be made to insure that the correct form is
used.
Also, where a law enforcement agency may have a policy or practice which goes beyond
the statutory requirements discussed herein, and those policies or practices are not prohibited by
this Guideline, then those policies or practices should be reviewed for legal sufficiency by the
Municipal Prosecutor or the appropriate legal counsel for the law enforcement agency.
Unlike a Miranda warning, which requires the defendant to affirmatively acknowledge a
constitutional right, the Standard (Refusal) Statement does not require such an affirmative
acknowledgment. What is required is that the defendant must give an “unconditional,
unequivocal assent” (State v. Widmaier, 157 N.J. at 497) to the request to submit to chemical
Attorney General Guideline: Page 23
Prosecution of DWI & Refusal Violations
breath testing. Anything less, including silence, constitutes a refusal, and subjects the defendant
to penalties, in addition to any penalties imposed for DWI.
A [B]reathalyzer test is not an occasion “for debate, maneuver or
negotiation, but rather for a simple 'yes' or 'no' to the officer's
request." Ibid. [State v. Bernhardt, 245 N.J. Super. 210, 219 (App.
Div. 1991), certif. den. 123 N.J. 323 (1991)] (quoting [State v.]
Corrado, supra, 184 N.J. Super. [561] at 569 [(App. Div. 1970)]
(quoting [State v.] Pandoli, supra, 109 N.J. Super. [1] at 4 (App.
Div. 1970])). Any other result would undermine law enforcement's
ability to remove intoxicated drivers from the roadways.
State v. Widmaier, 157 N.J. at 497
Similarly, a violation of the refusal statute, like a violation of the DWI statutes, is a strict
liability offense. There simply is no issue for a court to decide with respect to a defendant’s
subjective intent. State v. Widmaier, 157 N.J. at 498.
Finally, a “conditional or ambiguous response to a police officer's final demand to submit
to the [B]reathalyzer test constitutes a violation of the refusal statute whether or not the suspect
intended to refuse to take the test.” Ibid.
In situations where the defendant does not respond, or gives a vague or inconclusive
response, or requests to speak with an attorney before providing breath samples, the officer is
then required to read an additional paragraph on the Standard Statement informing the defendant
that he/she must respond and does not have a right to speak to an attorney. See, State v. Leavitt,
107 N.J. at 541-2. See also, State v. Widmaier, 157 N.J. at 487-8.
Once a police or law enforcement officer makes a determination, after having read to the
defendant, the appropriate Standard Statement, that the defendant has refused to submit to
chemical breath testing, the defendant is not entitled to “cure” that violation. State v. Bernhardt,
245 N.J. Super. 210 (App. Div. 1991), certif. den. 126 N.J. 323 (1991). Defendants’ are
afforded constitutionally sufficient notice and an opportunity to respond affirmatively and submit
to chemical breath testing.
The Standard (Refusal) Statements
The first Standard (Refusal) Statement was required with the adoption of P.L.1977, c.29,
Attorney General Guideline: Page 24
Prosecution of DWI & Refusal Violations
14
In 1982, N.J.S.A. 39:4-50.4 was repealed and replaced by N.J.S.A. 39:4-50.4a.
P.L.1981, c.512, §§2, 3.
amending, N.J.S.A. 39:4-50.2 and -50.4.14 Prior to 1977, no standard statement was required.
P.L.1966, c.142.
Thereafter, each time the Legislature has amended the DWI refusal statutes, new or
revised Standard (Refusal) Statements have been approved by the NJMVC Chief Administrator
(formerly the Director of DMV). Once the Standard Statement is approved, the Director of the
Division of Criminal Justice distributes those new or revised Standard (Refusal) Statements to all
law enforcement agencies throughout the State.
As of the date of this Guideline, three (3) Standard (Refusal) Statement forms, DWI,
CDL/DWI, OVWI, have been approved by the NJMVC Chief Administrator. This guideline
replaces all explanatory or cover memoranda which may have previously accompanied revisions
of the statements but in no way replaces or modifies the statements as promulgated by the Chief
Administrator of the NJMVC. The three approved statements are:
! DWI Refusal Statement - New Jersey Motor Vehicle Commission (NJ
MVC) Standard Statement for Operators of a Motor Vehicle - N.J.S.A.
39:4-50.2(e), Revised & effective, April 26, 2004 [P.L.2004, c.8, §4].
! CDL/DWI Refusal Statement - DMV Standard Statement For Operators
of a Commercial Motor Vehicle, N.J.S.A. 39:3-10.24e, Revised, February
1, 2001 to conform to State v. Widmaier, 157 N.J. 475, 498-499 (1999).
! OVWI Refusal Statement - New Jersey Motor Vehicle Commission (NJ
MVC) Standard Statement for Operators of Vessels - N.J.S.A. 12:7-55e,
Revised & effective, July 1, 2004 [P.L.2004, c.80, §4].
A copy of each of the above Standard (Refusal) Statements is attached to this Guideline.
Copies can also be found, in an Adobe (.pdf) format, on the Division of Criminal Justice internet
web site at www.njdcj.org or www.state.nj.us/lps/dcj, under the heading Attorney General
Guidelines, DWI Enforcement, “NJ MVC Standard Refusal Statements.” Any revision of one or
more of these Standard Statements will be posted, and available, on the Division of Criminal
Justice internet web site. In addition, a written notice will be sent to all law enforcement
agencies advising of the change and providing a copy of the revised Standard Statement.
attachments
Attorney General Guideline: Page 25
Prosecution of DWI & Refusal Violations
c. Col. Joseph Fuentes, Superintendent, Division of State Police
All Law Enforcement Chief Executives
Vaughn L. McKoy, Director, Division of Criminal Justice
AAG Daniel Giaquinto, Director, Office of State Police Affairs
AAG Jessica S. Oppenheim, Chief, Prosecutors Supervision & Coordination Bureau
DAG Stephen Monson, Prosecutors Supervision & Coordination Bureau
DAG John Dell’Aquilo, Jr., Prosecutors Supervision & Coordination Bureau
DAG Neil Magnus, Environmental Enforcement Section, Division of Law
Attorney General Guideline: Page 26
Prosecution of DWI & Refusal Violations
Table of Attachments
! Attorney General Directive, Nov. 18, 1998, To: All Municipal Prosecutors, Re: Plea
Agreements in Municipal Courts.
! Sentencing Table, DWI & DWI Refusal Offenses, and other related offenses.
! DWI Refusal Statement- New Jersey Motor Vehicle Commission Standard
Statement for Operators of a Motor Vehicle - N.J.S.A. 39:4-50.2(e), Revised &
effective, April 26, 2004 [P.L.2004, c.8, §4].
! CDL/DWI Refusal Statement - DMV Standard Statement For Operators of a
Commercial Motor Vehicle, N.J.S.A. 39:3-10.24e, Revised, February 1, 2001 to
conform to State v. Widmaier, 157 N.J. 475, 498-499 (1999).
! OVWI Refusal Statement - New Jersey Motor Vehicle Commission Standard
Statement for Operators of Vessels - N.J.S.A. 12:7-55e, Revised & effective, July
1, 2004 [P.L.2004, c.80, §4].