Mark Law Firm Blog

What are my rights during a New Jersey DUI/DWI stop?

Posted by Jamison Mark on Jul 23, 2015 2:02:27 PM
New Jersey Attorneys

Driving under the influence (DUI) or driving while intoxicated (DWI) carries stiff penalties in New Jersey because it can be a great danger to the public. A driver can face significant penalties for first, second and further offenses, including fines, suspension or loss of license, mandatory installation of an ignition interlock device, jail time, or community service. Collateral consequences of DWI convictions can impair your driving freedom, have lasting professional implications, and many other collateral consequences. Sobriety_checkpoint_easthaven_ct

You can be convicted of a DWI if a blood alcohol test shows that your blood alcohol content is .08% or greater (a “per se” violation) or if a police officer testifies that he or she observed you to be intoxicated (as demonstrated by erratic driving, blood shot, glassy, or watery eyes, the odor of alcohol, slurred speech, and/or the admission of consumption).

Your rights when you are stopped at a scheduled DUI checkpoint

A sobriety checkpoint is a set location at which law enforcement officers stop vehicles to check whether the driver is impaired. They either stop every vehicle or stop vehicles at some consistent interval (e.g., every fifth or ninth vehicle). Drivers are stopped briefly and interviewed; those suspected of being under the influence are subject to additional sobriety field tests.

The U.S. Center for Disease Control (CDC) advises that: “The purpose of checkpoints is to deter driving after drinking by increasing the perceived risk of arrest. To do this, checkpoints should be highly visible, publicized extensively, and conducted regularly.”[1]

The Fourth Amendment typically protects individuals against seizures (including baseless detention of vehicles) and warrantless searches, including those during a traffic stop. However, because of their overwhelming effectiveness in promoting the public good of combatting driving while intoxicated, the US Supreme Court and the State of New Jersey have determined that DUI checkpoints are permitted if they meet certain criteria.

Some states, including New Jersey, have set out more stringent requirements. In order to be valid, the roadblock must be conducted in a manner "calculated in advance to provide the least possible intrusion into the public's freedom and sense of security." The NJ Supreme Court specified that a roadblock that is acceptable under the State Constitution[2]:

  • was established by a command or supervisory authority
  • was carefully targeted to a designated area at a specified time and place
  • was based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law enforcement goals
  • was accompanied by adequate warnings to avoid frightening the traveling public
  • had advance general publicity designed to deter drunken drivers from getting in cars in the first place, and
  • implemented officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers. 

If you are stopped and cited at a roadblock or DUI/DWI stop that does not meet these criteria, you may be able to challenge the constitutionality of your citation.

Your rights regarding additional testing

Whether you are stopped for another traffic infraction or because of behavior indicating you may be impaired (such as weaving), if an officer has a reasonable suspicion that you are driving while intoxicated he may ask you to comply with additional testing. This can include performance of field sobriety tests and, if there is enough probable cause to believe you are intoxicated, a breath test analysis. 

New Jersey’s “implied consent” law says that by operating a motor vehicle on any public road, you effectively give your consent to provide breath samples for chemical tests to determine the content of alcohol in your blood (BAC), if he has reasonable grounds to believe that you have been operating a motor vehicle under the influence. 

You cannot be forced to take a Breathalyzer test. However, if you refuse to take one, your driver’s license will be suspended for at least seven months, up to a year; if the refusal is in connection with a second offense, it will be revoked for two years. For refusals in connection with a third or subsequent offense the revocation shall be for ten years. You will also be detained and brought to a hospital, where hospital staff may draw blood. Additionally, motorists who refuse to take a breath test in New Jersey are subject to MVC insurance surcharge of $1,000 per year for three years (which goes to a state fund). If you don’t pay this surcharge, your license will be suspended until it is paid in full.

If you are arrested, you have the right to an attorney - ask for one! If you can’t pay for a lawyer, you have the right to a public defender or other attorney at no cost. Don’t say anything without a lawyer. You have the right to remain silent – use it! 


If you believe that you were stopped at an improper roadblock, or that your rights were violated during a roadblock or traffic stop, a knowledgeable criminal defense lawyer can help determine if there are any legal remedies for you. Contact the experienced attorneys at the Mark Law Firm today for a consultation with one of our New Jersey DWI lawyers.

The New Jersey DUI lawyers at The Mark Law Firm can help if you run afoul of these or any other New Jersey criminal laws and need an experienced  criminal defense lawyers's assistance. Our Newark and Basking Ridge criminal lawyers are available to represent you in criminal and civil disputes, as well as personal injury lawsuits.

If you've been injured, find out what to do after being in an accident, understand how to preserve your rights, and learn how a personal injury lawyer can help you in our free eBook, "Personal Injury 101" -- just click the link below. If you are interested in a personal injury free consultation with one of our Newark personal injury lawyers or Basking Ridge personal injury lawyers, contact us today!

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Topics: Criminal Defense