FOL. II·Driving While Intoxicated

Avery & Avery, Esqs. is a top NJ DWI defense practice built around the constitutional and evidentiary questions that determine the outcome of every modern DWI case. We argue Alcotest 7110 foundation challenges under State v. Chun, 194 N.J. 54 (2008). We litigate probable cause for the stop under State v. Locurto, 157 N.J. 463 (1999) and Terry v. Ohio, 392 U.S. 1 (1968). We defend refusal charges under State v. Marquez, 202 N.J. 485 (2010) and State v. Spell, 196 N.J. 537 (2008). And we work the 20-minute observation rule, the calibration record, and the AIR printout the way DWI defense was meant to be worked.

If you have been arrested or summoned for DWI in Bergen, Hudson, Essex, Passaic, Morris, or Sussex County, the time to call is now. (201) 943-2445 — same-evening callbacks for arrests.

NJ DWI Law — N.J.S.A. 39:4-50

New Jersey’s primary DWI statute is N.J.S.A. 39:4-50. It prohibits operation of a motor vehicle:

• While under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug; OR
• With a blood alcohol concentration (BAC) of 0.08% or more

The statute applies on any public road, highway, or quasi-public area open to the public — including private parking lots open to public use, per State v. Garbin.

First-Offense Penalty Tiers

The 2019 reform (P.L. 2019, c.248) replaced mandatory license suspension with ignition interlock for many first offenses. The modern first-offense schedule:

All first offenses additionally include the IDRC (Intoxicated Driver Resource Center) program (12-48 hours) and DWI surcharges of $1,000/year for three years on top of the fine.

Multiple-Offense Penalty Tiers

A third-offense DWI carries a mandatory minimum of 180 days jail under N.J.S.A. 39:4-50, with no less than 90 days served in custody.

Refusal — N.J.S.A. 39:4-50.4a

NJ has implied consent under N.J.S.A. 39:4-50.2 — driving on NJ roads is statutory consent to a chemical breath test on lawful arrest. Refusal under N.J.S.A. 39:4-50.4a is a separate offense with its own penalty schedule. First-refusal penalty: $300-$500 fine, 9-15 months IID, IDRC, and the same surcharges as a first DWI. Refusal defenses center on:

• Standard Statement under State v. Marquez and State v. Spell (officer must read verbatim, in a language the defendant understands)
• Lawful arrest predicate (refusal requires a valid DWI arrest)
• The confusion doctrine (very narrow — defendant did not understand the warning)

Alcotest 7110 Foundation — State v. Chun

The Alcotest 7110 is the breath-testing instrument used by NJ police departments for DWI prosecutions. State v. Chun, 194 N.J. 54 (2008) is the landmark NJ Supreme Court case establishing the 12-step foundation requirements for Alcotest evidence. The defense routinely challenges any missing element of foundation:

• The 20-minute observation period (the operator must observe the defendant continuously for 20 minutes before the reading — no mouth alcohol, no burping, no foreign substances)
• The calibration check (current within the certification window)
• The AIR (Alcohol Influence Report) printout with operator signature
• The .xml download showing the underlying data
• Two breath samples within tolerance per the Chun protocol

Where any element of foundation is missing, the Alcotest reading is inadmissible — and without the reading the State’s case typically collapses to an observation-only DWI prosecution that is materially harder to win.

Probable Cause for the Stop

Many DWI cases are won at the suppression-motion stage on the probable-cause-for-the-stop question. Terry v. Ohio requires articulable reasonable suspicion to initiate the stop. State v. Locurto governs the NJ probable-cause standard. Where the dash-cam, body-cam, or dispatch tape shows the stop was based on something other than the lawful predicate the officer claims at trial, the stop is unconstitutional and any DWI evidence flowing from it can be suppressed.

Sub-Areas of Our DWI Practice

• First-Offense DWI
• Refusal Defense (Alcotest)
• Multiple-Offense DWI
• CDL DWI — federal disqualification exposure under N.J.S.A. 39:3-10.13 (0.04% threshold)
• Underage / Baby DUI — zero-tolerance under N.J.S.A. 39:4-50.14
• Drug DWI — DRE protocol challenges under State v. Eckert

Bergen-Rooted, Six-County Practice

Most NJ DWI matters are heard in the municipal court of the municipality of the stop. Avery & Avery handles DWI matters in:

• Bergen County — every Bergen municipal court + Bergen County Justice Center for indictable DWI-related charges (e.g., N.J.S.A. 2C:11-5.3 strict-liability vehicular homicide). Bergen County DWI →
• Hudson County — Jersey City, Hoboken, Bayonne, Union City, North Bergen, Weehawken, Secaucus, West New York
• Essex / Passaic / Morris / Sussex — full coverage

Robert W. Avery’s fifteen-year tenure as Judge of the Ridgefield Municipal Court means our DWI practice is informed by years of presiding over the same statutes now being deployed on a client’s behalf. The structural perspective is rare among NJ DWI roster firms.

Schedule a Free Consultation

For a free first consultation, call (201) 943-2445 or submit through the consultation form. After hours leave a voicemail — same-evening callbacks for arrests are routine.

For more on our DWI defense team, see John S. Avery’s bio and Robert W. Avery’s bio. For our DWI fee structure, see the fees page.