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“Please step out of the vehicle” is among the most frightening phrases a person can hear during a traffic stop. It could mean that the police officer suspects driving while intoxicated (DWI) and wants to look for signs of impairment. It is important to know your rights under state law and the U.S. Constitution. This post offers an overview of what a police officer looks for when you leave the vehicle, and what you can do to protect your rights.

New Jersey DWI Law

New Jersey defines DWI as operating a vehicle while impaired by alcohol or drugs. Police and prosecutors can prove that you were impaired in two ways:
– You had blood alcohol content (BAC) of 0.08 percent or more; or
– You displayed other signs of intoxication by alcohol or drugs.
Police usually use breath testing to establish a person’s BAC. The second method of proving DWI requires police officers to observe you and testify about what they saw. Asking you to get out of the vehicle lets them make more observations about your appearance and behavior.

Traffic Stops and Requests to Step Out of the Vehicle

The U.S. Supreme Court determined that police can briefly stop a vehicle based on reasonable suspicion of an offense in Terry v. Ohio in 1968. Once the vehicle has stopped, they can observe how the driver behaves and anything that is in view inside the car. If an officer smells alcohol, sees an open container in the vehicle, or notices other signs of impairment, they can continue a DWI investigation.
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New Jersey law imposes numerous penalties for driving while intoxicated (DWI). A conviction can result in fines, jail time, and driver’s license suspension. New Jersey no longer imposes an automatic license suspension after a DWI arrest, unless it’s a drug-based offense, or there is a conviction for refusal to submit to breath testing. The length of a driver’s license suspension after a DWI conviction depends on a person’s blood alcohol concentration (BAC) and the number of prior DWI convictions. A driver convicted of DWI in New Jersey must install an ignition interlock device (IID) in their vehicle. A law that took effect in New Jersey in 2025 allows many people to reduce the length of their license suspension based on how long they have an IID installed in their vehicle. It is informally known as the “2 for 1 law,” because it reduces the driver’s license suspension period by one day for every two days a person has an IID in their vehicle.

What Is an Ignition Interlock Device?

An IID is a device that attaches to a motor vehicle’s steering column. It is essentially a breathalyzer that prevents the vehicle from starting if the driver’s BAC is over a certain amount. For people with DWI convictions, the BAC threshold is less than the “legal limit” of 0.08 percent.

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The holiday season ought to be a time to celebrate with loved ones. Sometimes, though, people who celebrate too much can run into increased driving while intoxicated (DWI) enforcement by New Jersey police. More cars might be out on patrol, or police may use roadside checkpoints to look for impaired drivers. Drivers on New Jersey roads should be aware of the state’s DWI laws, police enforcement, and what they should do if they are arrested for DWI during the holiday season.

Do DWIs Increase During the Holidays?

According to the National Highway Traffic Safety Administration (NHTSA), the period from Thanksgiving to New Year’s Day often sees an increase in DWI across the country. It bases this on the rate of fatal accidents that involve intoxication.

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Driving while intoxicated (DWI) can have significant consequences under New Jersey law. A conviction will result in the suspension of one’s driver’s license, followed by the mandatory use of an ignition interlock device. It also involves a fine that may range from $250 to $1,000, as well as the possibility of jail time. If you have prior DWI convictions on your record, you could face steeper penalties. Exactly when and how these enhanced penalties apply can be confusing. State law defines the penalties for a first DWI offense, a second offense, and a “third or subsequent” conviction. The “or subsequent” language means that the same penalties apply to a fourth, fifth, or sixth conviction as apply to a third conviction. One of the main differences between a fourth conviction and a third one is that judges are less likely to offer any leeway to someone with more DWI cases on their record. They are more likely to impose the maximum penalty allowed by law, which is why a skilled DWI lawyer is essential.

“Lookback Period” for New Jersey DWI Charges

Some states look at the total number of prior DWI convictions over a person’s lifetime when determining the penalty for a new conviction. New Jersey courts mainly look at the ten years before the current offense. For example, if a person is convicted for DWI that occurred on June 1, 2025, the court will look at how many DWI convictions they have in total, and whether any occurred after June 1, 2015:
– One prior DWI conviction from more than ten years ago: The court will treat the current case as a first offense.
– Two DWI convictions from over a decade ago: The court will consider the current case to be their second offense.

The statute does not specifically describe what happens if a person has three or more DWI convictions outside of the ten-year period. A court might view a fourth DWI as a third offense under those circumstances, but it would not make much difference for the penalties.
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It might seem like the offense of driving while intoxicated (DWI) in New Jersey requires proof that a defendant was driving a vehicle. This is not correct, though. Police can arrest you if they find you in a vehicle while intoxicated, even if you are not and have not been driving. One example might involve a person who, rather than driving home, decides to sleep it off in their car. This seems like a responsible choice, but to a police officer, it might look like the person still intends to drive. This intent is one of the key issues in this type of DWI case. A DWI defense lawyer’s job is to question any supposed evidence of intent to drive.

New Jersey Defines “Operate” Very Broadly

The state’s DWI statute defines the offense as “operat[ing] a motor vehicle” while impaired by drugs or alcohol, or with a blood alcohol concentration (BAC) of 0.08 percent or more. It might seem like “operating” necessarily means “driving” a vehicle. This is not how New Jersey courts have interpreted it, though.

A 1963 New Jersey Supreme Court decision held that proof of driving was not necessary for a DWI conviction. The case involved a defendant who was in the driver’s seat while intoxicated with the engine running. No evidence suggested that he had moved the vehicle from where it was parked.
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Video evidence can be useful for either side in a driving while intoxicated (DWI) case. Prosecutors may introduce video from a dashboard camera in a police vehicle or an officer’s body-worn camera to corroborate the officer’s testimony about the defendant’s behavior or appearance. A DWI defense lawyer can use footage to chip away at the state’s case, such as by challenging the officer’s justification for making a traffic stop. Body cams have become increasingly common as a way to document arrests and other police encounters. Police departments and city governments may refuse to release body cam footage in some circumstances, although this is rarely the case for DWI defendants. A recent New Jersey Supreme Court decision expands the availability of body cam footage under the state’s Open Public Records Act (OPRA). How this may affect DWI defense remains to be seen.

Prosecutors have two ways to prove intoxication in DWI cases. They can introduce evidence of blood alcohol concentration (BAC) to show that a defendant was above the “legal limit” of 0.08 percent. They may also call the arresting officer and other witnesses to testify about how a defendant looked or how they were acting. Slurred speech, slowed or clumsy movements, and glassy eyes could be signs of intoxication. An officer may testify about these kinds of observations, as well as observations about a defendant’s performance on field sobriety tests (FSTs). Video evidence may support an officer’s testimony, but defense attorneys may be able to use it to refute what an officer claims on the stand.

Video evidence can challenge the state’s case in the hands of a skilled defense lawyer. While the prosecution might claim that a video shows a defendant “failing” one or more FSTs, the defense can point to features that dispute this. For example, the officer might have asked the defendant to perform a test on uneven ground that throws off their balance. Weather conditions like rain or snow could make it difficult for anyone to maintain balance. A video could even challenge an officer’s description of a defendant’s behavior or appearance, such as if claims of clumsy movements were the result of a cracked roadway or other obstruction.
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New Jersey’s driving while intoxicated (DWI) law requires the state to prove that a person was impaired by alcohol or drugs while driving or attempting to drive. Police use breath testing to measure a DWI suspect’s blood alcohol content (BAC). Anyone driving on public roads in New Jersey has given their implied consent to submit to breath testing. Police and prosecutors must demonstrate that the devices used to test breath samples for BAC are in good working order. Nearly ten years ago, news broke that a former State Police sergeant had falsified maintenance and calibration records for Alcotest devices in five counties, affecting more than 20,000 DWI cases. That case is still affecting DWI cases today, as shown by a 2024 New Jersey Supreme Court decision in which a defendant challenged the use of a prior DWI conviction to enhance his sentence. The court discussed what evidence the state must present to prove that a prior conviction is not one of the 20,000 with tainted evidence.

In 2008, our firm was involved in a case before the New Jersey Supreme Court, State v. Chun, which addressed the use of the Alcotest device in DWI investigations. The court ruled that the Alcotest produces reliable results as long as it receives regular maintenance and calibration. It established procedures for proving that police departments have kept the devices in good repair. Defendants can request this evidence from prosecutors. Failure to maintain a device or to produce the required documentation can result in a court throwing out the BAC results.

The system established in State v. Chun works well enough, assuming that the police keep accurate records of Alcotest maintenance. In 2016, however, news emerged that a State Police sergeant responsible for maintaining numerous devices had failed to perform the necessary calibrations and had falsified records. The New Jersey Supreme Court appointed a special master to review how this affected the reliability of Alcotest results in the counties with inaccurate or falsified records.
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The offense of driving while intoxicated (DWI) can have severe consequences in New Jersey. Penalties can range from relatively small fines to six months in jail, along with driver’s license suspension and mandatory use of an ignition interlock device. Defending against DWI charges often involves disputing the sufficiency of the evidence, but it is also possible to challenge the legality of the entire case. If police fail to respect DWI suspects’ constitutional rights, a court could toss out the entire case. This is what happened in a case before the New Jersey Appellate Division in 2024. The case involved a police officer who suspected a driver of DWI. The court found that his suspicions were legally justified, and that the traffic stop was legal. The officer violated the suspect’s rights, however, by entering the suspects garage after she had driven her car there. This resulted in dismissal of the case.

Both the U.S. and New Jersey constitutions prohibit “unreasonable searches and seizures” and require police to get a warrant before they may search a person or their property. Courts have identified numerous exceptions to the warrant requirement. For example, police may briefly stop a vehicle on the road if they have reasonable suspicion that a driver has committed or is committing a motor vehicle offense or criminal offense. They may not hold a driver longer than is necessary to assess whether an offense had occurred or is about to occur. If they have probable cause to believe driver has committed an offense like DWI, they may continue the investigation, such as by asking them to perform field sobriety tests.

These types of stops are sometimes known as Terry stops. The name comes from the U.S. Supreme Court’s 1968 decision in Terry v. Ohio. The case established rules for traffic stops and other brief detainments by police. Generally speaking, police may not expand their search to additional locations under Terry without a warrant or another exception to the warrant requirement.
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New Jersey’s driving while intoxicated (DWI) statute provides numerous ways to penalize a person after a conviction. It does less to provide resources and treatment to someone who might be struggling with substance abuse issues. Some states have created pretrial intervention (PTI) programs for eligible DWI defendants to help them seek assistance for alcohol or drug addiction. If they complete the program, the court could reduce their penalties or even dismiss the charges. New Jersey has PTI programs for criminal cases involving drugs or alcohol, but these programs are not available in DWI cases. The closest thing to treatment in the DWI statute is the Intoxicated Driver Resource Center (IRDC), which is mandatory for all DWI convictions. The program is brief, however, even for repeat DWI offenders. New Jersey may eventually allow some sort of PTI in DWI cases. For now, though, the main options are to plead guilty or fight the charges.

DWI is a motor vehicle offense in New Jersey, not a criminal offense. This means that DWI cases do not always have the full range of procedural and constitutional protections found in criminal cases. For example, New Jersey DWI defendants are not entitled to a trial by jury. The flip side of this is that the penalties for DWI convictions are not as harsh as they might be if they were criminal charges.

New Jersey PTI programs like Recovery Court are only available in criminal cases. DWI defendants are not eligible, essentially by definition. The only criminal offense under New Jersey law that may arise from a DWI case involves certain scenarios in which a person drives with a suspended license, and the suspension is due to a DWI conviction. This offense is a fourth-degree crime that has a minimum sentence of 180 days in jail. A person convicted of this offense is still not eligible for Recovery Court, which excludes convictions with mandatory minimums.
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New Jersey motor vehicle offenses carry a wide range of penalties, ranging from driver’s license suspension to jail time. Driving while intoxicated (DWI) is a motor vehicle offense under New Jersey law rather than a criminal one, but some penalties can be just as serious as the criminal law system. Like many states, New Jersey uses a points system to assess penalties for many traffic offenses. Accruing too many points in too short a period may result in surcharges, driver’s license suspension, or both. DWI is not among the motor vehicle offenses that add points to your driving record. This is not exactly good news, however, as the penalties associated with DWI are generally harsher than points.

What Are Points?

New Jersey’s points system gives the state a way to assess whether you pose a danger to others on the road. The most minor traffic offenses do not add points to your record. A parking violation, such as forgetting to feed the meter, does not reflect poorly on a person’s ability to drive safely.

Traffic offenses like speeding, failing to yield, or running a red light pose a danger to other drivers and pedestrians. They may result in points on your driving record. For example, the number of points associated with speeding depends on how fast you were going:
– Up to 14 mph over the speed limit: 2 points
– 15 to 29 mph over the limit: 4 points
– 30+ mph over the limit: 5 points
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