What is BAC and How to Win a DWI / DUI in New Jersey

A DWI (Driving While Intoxicated) or DUI (Driving While Under the Influence) charge in NJ is proven by your blood alcohol concentration (BAC). Your BAC can be tested and determined with a simple Blood Test, Breathalyzer or Alcotest in NJ to charge you with a DWI.

Attorney H. Scott Aalsberg, Esq., P.C.

We Fight To WIN all DWI's

In New Jersey, a person with a BAC of 0.08% or greater who operates a motor vehicle or a boat is considered to be driving under the influence (DUI).   Being convicted of a DUI or DWI is a serious offense, carrying heavy penalties including:   Fines, fees, surcharges, Jail time and Community service.

Each persons body absorbs alcohol at a different level and the rate of absorption varies even in the same individual at different times of the day. (example most peoples bodies will absorb alcohol quicker in the mid day and much slower in the late night hours) Generally, the average rate of “burn off ” or elimination of alcohol is .015 in an hour. The burn rate is much lower than most people think, thus the reason why many people are surprised when a police officer asks them to step out of the car for the DWI tests.

For NJ DWI charges the difference between Blood Alcohol Content (BAC) and Breath Alcohol Concentration (BrAC) is important. Breath Alcohol Concentration (BrAC) is utilized most often by NJ Police to extrapolate or estimate an individual's Blood Alcohol Content (BAC). The best and most accurate way to determine Blood Alcohol Content (BAC), is through a blood sample. Since it is very difficult to provide medical personnel to obtain this sample in field situations (while the officer is determining if an individual is Driving While Intoxicated (DWI) or Driving Under the Influence (DUI)), breath testing devices are utilized to determine Breath Alcohol Concentration (BrAC) which typically can be used to evaluate Blood Alcohol Content (BAC). For a DWI in NJ Breath testing devices rely on an a ratio that equates the parts of alcohol found in the breath to the correlating amount of alcohol found in blood. A Blood Alcohol Content (BAC) of 0.20% means that there is 1 gram of alcohol per every 500 grams of blood. The courts of all 50 states have determined that both the Breathalyzer machines and Alcotest machines are scientifically accurate in determining BAC levels. The only way to prove the BAC level taken by the police is inaccurate is by:

  • Proving a BAC test taken within a short period of time after being released by the police has a substantially different result.
  • Proving that the police operated the DWI testing machinery incorrectly
  • Proving that the machine used by the police was not operating properly
  • Proving the machine used to test was operating improperly
  • Proving the machine used was not properly certified
  • Proving the operator of the machine was not properly licensed or had an expired license

If a Breath Test or Blood Test is not given the police may still prove intoxication and your BAC level with physical tests.  In New Jersey the most commonly used tests to prove a DWI are: The walk and turn, The one legged stand, Counting numbers or the alphabet, and the HGN Test.  All of our New Jersey DWI Lawyers know these tests inside and out!

How Much You Can Drink Legally without getting a DWI in NJ is based on the following factors:

  • Your Body Weight
  • The amount of alcohol consumed
  • The length of time drinking
  • The quantity and quality of the food eaten prior to or while drinking
  • Your sex (Women absorb alcohol into the bloodstream faster and metabolize it slower than men.

The 3 Most Commonly Used DWI - DUI Tests In New Jesey

HGN (Horizontal Gaze Nystagmus Test). The HGN test uses a penlight or a finger which is quickly waved across the subject’s vision to see that both eyes move in tandem, at about a one foot distant – the driver is asked to follow the light or finger with the eyes. During the HGN Test the police officer is looking for four indicators of impairment: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, is the driver following the instructions given to hold his head straight without movement, and if the angle of onset of jerking of the eyeball, instead of smoothly tracking, is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. Unfortunately only the police officer at the scene can determine whether a person has passed this test.

Walk and Turn Test: Most people assume that this test is merely testing whether
the DWI suspect can walk heel to toe, but the primary object is to determine whether the DWI suspect can follow instructions while performing a test. The eight areas which will be most determinative of intoxication are

  • Did the DWI suspect start the test prior to being told to
  • Did the DWI suspect keep arms at his side as told to
  • Did the DWI suspect stop during the test
  • Did the DWI suspect touch each heel to toe within 1.5 inches
  • Did the DWI suspect at any point step off the line
  • Did the DWI suspect use his arms for balance
  • Did the DWI suspect perform the turn as instructed and
  • Did the DWI suspect take the correct amount of steps as requested.

One Legged Stand Test: In this test the DWI suspect must raise either foot at least 6 inches
above the ground, keep his arms at his sides, loot at his raised foot, point his toes forward, count up to 30 for up to 30 seconds in the fashion of one thousand, one thousand and one, one thousand and two etc. The police officer during the DWI stop is looking for the suspect to:

  • Sway
  • Raise his arms more than 6 inches from his body
  • Drop his foot or hops
  • Counts incorrectly
  • Starts prior to being told to start.

DWI Field Sobriety Tests Can Be Attacked With Prior Diagnosed Medical Conditions!

Attorney H. Scott Aalsberg, Esq., P.C.

At the Law Office of H. Scott Aalsberg, all of our attorneys are experienced at winning NJ DUI and DWI offense. Repeat: Winning DWI and DUI Cases. Unlike some other firms we don't just plead our clients guilty. Each New Jersey DWI and DUI case is thoroughly evaluated and contested to get you the best results possible. Each attorney has a minimum of 20 years of experience doing just that. Hiring the right attorney is the best way of increasing your chances of winning your charge. The second most important way of winning your case is giving your attorney enough time to prepare the case. Many clients delay or procrastinate in hiring a DWI or DUI attorney and this is the single biggest factor in getting the best result. The sooner your NJ DWI Lawyer gets started putting a defense together on your case the more time the attorney has to find and prepare the proper defense for you. You should hire your DWI lawyer within 48 hours of being arrested as the rules require the court to try or complete all DWI's within 60 days of the date of the offense. Waiting longer can jeopardize the result obtained in your case and the penalties for a DWI are severe

Penalties for Repeated DUI convictions

2nd Offense within 10 years of 1st Offense

  • Offense License loss Fines, fees & surcharges Prison term Community service requirement
  • 2nd offense within 10 years
  • 1-2 years loss of license
  • $500–$1,000 fine
  • $280 IDRC* fee
  • $100 to drunk driving fund and $100 to AERF*
  • $1,000/year (for 3 years) surcharge
  • $75 to Neighborhood Services Fund 48 hours–
  • 2 to 90 days in Jail Community Service for 30 days
  • 12–48 hours IDRC* Ignition Interlock device for 2 to 4 years once drivers license is restored

3rd offense within 10 years of 2nd offense

  • 8 years loss of license and 8 years loss of registration
  • 180 Days in Jail (up to 90 may be spend with court approval in an inpatient alcohol program)
  • $1,000 fine
  • $280 IDRC* fee
  • $100 to drunk driving fund
  • $100 to AERF*
  • $1,500/year (for 3 years) surcharge
  • $75 to Neighborhood Services Fund
  • Jail for 180 days up to 90 days (can reduced if allowed by court to be served in an approved alcohol inpatient program)
  • 12–48 hours IDRC*

Related NJ DWI / DUI Offenses

Driving or riding with an open container

Offense Fines Community service
1st $200 10 Days
2nd $250 10 Days

Driving with a Suspended License Due to a DWI or DUI (39:3-40)

License loss Fines or surcharges Prison term
Additional 1–2 years $500 fine $250/year (for 3 years) surcharge 10–90 days

Driving while possessing drugs (39:4-49.1)

License loss Fines or surcharges
2 years Minimum $50 fine

*IDRC - Intoxicated Driver Resource Center
*AERF - Alcohol Education and Rehabilitation Fund
Underage drinking may cause a six-month delay in getting a license Alcohol and drug-related offenses require completion of an alcohol screening and evaluation program

Failure to pay a DWI or DUI surcharges will result in Indefinite suspension of driving privileges, a civil action filed in State Superior Court by MVC including securing a lien against your property, garnishing your wages or other similar action.

Fact: If you got a Reckless Driving Ticket with your DWI Charge? You could face up to an additional 60 days in Jail.
This is just another reason not to delay and start your DWI or DUI Defense today

Additional Possible Lifetime Penalties for a Conviction of a DWI in NJ:

Although the penalties imposed by a judge and the State of New Jersey can be severe including jail, even for a first offense, these penalties are eventual served and go away and only can become a distant memory over time. But other penalties society imposes don't go away and can last a lifetime, these penalties include:

  • The inability to rent a car (many car rental companies will rent a car after a long period of ineligibility such as 5 or 10 years if you only have only one past offense)
  • The inability to travel: Some countries including Canada bar entry to US Citizens convicted of DWI offenses to enter the country.
  • The inability to find work: Some employer have bans on hiring people convicted of DWI offenses.

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