New Jersey Criminal Attorney Blog

There is a lot of misinformation concerning the consequences of refusing a breathalyzer test, but the law in New Jersey is clear: you must take the test or face stiff penalties.

On a first offense, refusing a test can result in license suspension for 7 months to a year, up to a $500 fine and 12 hours in an Intoxicated Driver Resource Center Program. To convict someone of refusing the breathalyzer test, the State needs only to show that the arresting officer had probable cause to believe the defendant operated the vehicle while intoxicated. However, it is possible to be found guilty of refusing the test even if a defendant is acquitted of driving while intoxicated.

In fact, just recently a Hoboken police officer was charged with refusing a breathalyzer test, adding to his legal troubles that include a DWI charge.

Whether you have a New Jersey driver's license and you receive a traffic ticket out of state, or you live elsewhere and get pulled over for a violation while driving through North Jersey, it's important to understand how out-of-state violations affect the number of points on your license.

Almost all states belong to the Driver License Compact, an agreement among member states to share information on traffic violations. However, each state establishes its own rules that determine whether it will assess points for minor out-of-state traffic violations.

For example, if you hold a New York driver's license and receive a minor traffic violation in New Jersey, no points will be assessed to your New York license. It's important to remember that such violations still could result in costly fines, so consider all of the factors before deciding whether to plead guilty to a traffic offense.

On the other hand, a New Jersey driver who is deemed guilty of a minor point violation in New York will typically see two points assessed to his or her New Jersey license. A New Jersey driver who accumulates points could have to pay surcharges, and a New Jersey driver who receives 12 to 15 points in two years could have his or her license suspended for 30 days.

The rules are different for more serious offenses such as DUI charges. An out-of-state driver who is convicted of such charges in New Jersey could be in danger of having his or her home state license suspended. Such rules depend on the state and the type of violation. For example, a New York driver 21 years or older who is convicted in New Jersey of an alcohol related offense could have his or her license suspended for 90 days. If the conviction is for a drug related offense, the suspension is six months.

An out of state driver who receives a summons in New Jersey and wants to plead not guilty may not have to appear in court to address the charges, depending on the circumstances. In some cases, a local attorney may be able to represent a driver at a court hearing without the driver being present.

With news that a California judge agreed to expunge Mel Gibson's infamous arrest from his record, it's worth noting that he would not have been so lucky had he been before a New Jersey court.

DWI convictions - or any motor vehicle violations for that matter - are specifically excluded from New Jersey's statute on expungement. Such convictions remain on your record permanently, which is why it is so essential to have good representation in the event of a DWI arrest.

However, expungement is available for other offenses. In New Jersey Courts, an expungement involves scrubbing a person's record of "detection, arrest, detention, trial or disposition of an offense within the criminal justice system." The goal is to allow a one-time offender to move forward with his or her life.

Not everyone is eligible for an expungement. The following criteria must be met:

• you have no other prior or subsequent arrests


• you have not been convicted of a disorderly or petty disorderly persons offense on more than two occasions.


• you have not been convicted of more serious crimes including murder, manslaughter, rape, arson, perjury, and certain drug offenses, among others

The law also requires a waiting period before a petition for expungement may be granted. The clock begins running from the conviction, payment of a fine, or completion of parole or incarceration, whichever is later. That time period is ten years for most crimes, five years for disorderly persons offenses, two years for violations of a municipal ordinance, and one year for drug possession offenses where the offender was 21 years old or younger and possessed 25 grams or less of marijuana or 5 grams or less of hashish.

The process for seeking expungement involves petitioning the court involves filing a petition with the Superior Court in the county where the offense occurred.

An odd story came out of North Carolina this morning where a 51-year-old man was charged with DWI after police caught him riding his bicycle while intoxicated. But don't expect to see any similar stories out of New Jersey, where the DWI laws are not so broadly applied.

Contrary to what may be the case in other parts of the country, New Jersey's DWI law does not apply to bicyclists. But, to state the obvious, the practice could still result in trouble.

New Jersey's DWI statute specifically applies to motor vehicles. The statute defines a motor vehicle as "all vehicles propelled otherwise than by muscular power. . ." Clearly that would exclude bicyclists. Yet in 1988 a Montgomery Township municipal court judge convicted a man of DWI for bicycling while drunk. The defendant appealed and in State v. Machuzak, a Somerset County judge threw out the conviction. In reversing the conviction, the judge wrote that it was "abundantly clear" that the statute was "not intended to apply to non-motorized pedal-type bicycles."

It may seem obvious, but it's worth stating: common sense dictates that bicycling while drunk is never a good idea. In addition to risking personal injury, it could result in other related charges such as disorderly conduct. And getting drunk in public often leads to other far more serious offenses like assault.