Interviewer: Does New Jersey have different levels for different BAC’s such as a super-drunk or an aggravated-mode?
First Offense DWI Charges Are Divided into 2 Tiers Depending on the Blood Alcohol Content (BAC) of the Driver
Lauren Scardella: No, but on a first offense it is divided into two tiers. For a first offense if the blood alcohol level is between .08 and .10, there is a 3 month license loss and slightly lower fines and all the other penalties are the same.
If it’s over .10 then it’s the longer license loss of 7 months to a year. Both are still considered a DWI and they’re both reported on the driver’s abstract in exactly the same manner.
Will You Still Be Arrested and Charged with DWI If the Breath Test Result Is Below the Legal Limit of .08?
Interviewer: What if the breath test result is below a .08, will they still arrest you and will they charge you with DWI?
Lauren Scardella: Yes. In New Jersey they arrest on the road and bring you back to the station and have you blow into the Alcotest® there. They write the summonses prior to the defendant blowing into the Alcotest®.
Yes, I have had cases that are 0.0 and I’ve had cases that are .04’s. The drivers do still get arrested. Often those cases end up with dismissals or they end up with a reckless driving or a careless driving rather than the DWI. Technically, though, a person can be convicted on an observations case even with a low reading.
Are Cases with Breath Tests below .08 Defensible?
Interviewer: How does the court perceive someone that blows below .08? Are these very defensible cases?
Lauren Scardella: They’re extremely defensible. Although in New Jersey, one can be convicted without blowing over the limit, which is called an observations case. This is where the police arrest based on the totality of the circumstances. Did they perform well on the field sobriety test? What was their driving conduct? What was their demeanor? Did they admit to consuming alcohol? They can technically still be convicted of DWI. However, the prosecutor, when the BAC is below .08, is understandably much less interested in prosecution. So they are much more likely to either outright dismiss it and suggest a plea to reckless driving or a careless driving, and most of the time that still involves some loss of license.