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Distinction Between DWI and DUI in New Jersey

January 19, 2024

Are DUI and DWI the Same in NJ?

The same New Jersey law (N.J.S.A. 39:4-50) punishes driving while intoxicated (DWI) and driving under the influence (DUI). Though people use the terms interchangeably when referring to illegally driving impaired, the two differ in the specificity of their definitions and consequences. Technically speaking, a DWI exclusively refers to instances when the police arrest you for driving while intoxicated by alcohol. A DUI is for driving under the influence of impairing substances other than alcohol, such as legal and illegal drugs. 

In essence, the terms are often used to refer to the same thing, but they can be distinguished by the types of substances each encompasses. You could be driving under the influence of cocaine, while someone else was driving while intoxicated by three or four shots of vodka. Although you can use DWI and DUI to refer to the traffic offense governed by the same statute, the type of substance involved in the impairment will matter substantially when it comes to the potential consequences you face if convicted.

Are DUI and DWI the Same in NJ?

“DUI” Driving Under the Influence of Any Substance Other than Alcohol

When law enforcement arrests you for driving under the influence of a Schedule I or II drug, like heroin or fentanyl, you face a DUI charge in municipal court. Even if you drove after taking a prescription drug from your doctor, such as Xanax, you are guilty of a DUI. Also, while up to six ounces of marijuana is legal in New Jersey, driving while under the influence of marijuana is still grounds for a DUI. It is not lawful to drive impaired by any drug. Notably, a DUI may lead to a criminal investigation, resulting in drug possession charges. In these situations, the case becomes a criminal one and a traffic one, both of which can result in harsh consequences.

“DWI” Driving while Intoxicated by Alcohol

It is also unlawful to drive with any amount of alcohol in your system, but for purposes of a DWI, you cannot drive with a blood alcohol content (BAC) of .08% or higher.

How is the Evidence Different for DWI vs. Drug DUI?

Types of Evidence Used to Prove DWI Charges in NJ

If an officer stops you for driving suspiciously or breaking a traffic law, they may recognize the signs of alcohol impairment by the alcohol odor on your breath, your bloodshot eyes, or slurred speech. Additionally, there may be an empty container in your car. The officer is likely to ask you if you drank alcohol and require you to take field sobriety tests to confirm their suspicion if you deny drinking or drunkenness. If your balance and mental ability appear impaired, the officer may arrest you and require you to blow into a breathalyzer to register your BAC. A BAC above the legal limit is evidence supporting a DWI, but so is the officer’s testimony of how you appeared when stopped and during the field sobriety tests.

Kinds of Proof in Driving under the Influence Cases

On the other hand, a DUI is more difficult to prove because there is no device to blow into that registers the type of drug or level of impairment. While an officer may stop you and recognize impaired behavior, they may not be able to determine the type and amount of drug to prove you are guilty of a DUI. They can still observe you fail a field sobriety test and report your performance as testimonial and documentary evidence at your trial. While an officer’s testimony is relevant support for a DUI, it may not be enough evidence.

In the absence of a driver’s consent to a blood or urine test, the best evidence may come from a Drug Recognition Expert (DRE) trained explicitly in identifying drug impairment. A DRE determines a driver’s impairment after analyzing several factors, including the driver’s pulse, pupil dilation, and responses to specific balance and memory tests, among other indicators. And yet, even a blood or alcohol test may not precisely determine when you ingested drugs before driving. In other words, your tests may suggest drugs are in your system but not precisely how long they are in your system, which is not convincing evidence for a prosecutor to prove you drove while impaired by drugs.

Do DWI and DUI Have the Same Penalties in New Jersey?

Whether you are found guilty of a DWI or DUI, the penalties are steep, but they are not the same. DWI penalties include fines, annual insurance surcharges, 12 to 48 hours in an intoxicated driver resource center (IDRC), and mandatory ignition interlock device (IID) installation. However, the higher the BAC, the more likely the driver will face jail time and a license suspension in addition to the fines, surcharge, IDRC, and IID requirements.  Also, multiple DWIs mean higher fines, more jail time, possible confinement in an alcohol rehabilitation facility, longer license suspensions, and years of driving with an IID.

The penalties for a DUI are less forgiving when compared to an alcohol-related DWI first offense. If you install an IID immediately, you can avoid a license suspension when it is your first DWI. On the other hand, if the charge is drugged driving and it is your first offense, you lose your license for up to a year. You also must pay fines and face up to 30 days of possible jail time. For subsequent DUIs, you can expect higher fines, longer jail sentences, license suspensions, and community service. Three or more DUI convictions involving drugs mean up to six months in jail, mandatory enrollment in a drug and alcohol rehabilitation program and installation of an IID, and a license revocation for up to ten years.

How are DWIs and DUIs Handled in Court in New Jersey?

Both traffic violations require the accused to appear in court to answer the charges. Since it is a traffic violation, a municipal court judge decides guilt or innocence rather than a jury. However, a judge can sentence a defendant to a maximum of six months in jail. As such, a DWI or DUI can result in jail time like a criminal offense, although you will not have a criminal record for a conviction. You have the right to an attorney to assist in your defense and can challenge and present evidence as you would for any trial.

How to Get a DWI or DUI Case Dropped in NJ

DWI attorneys can challenge the state’s evidence as the number one strategy for defeating the charges. Since the prosecuting attorney has the highest burden of proving the charges and convincing a judge beyond a reasonable doubt, a DUI lawyer can potentially focus on creating a suspicion that the DWI chemical test is unreliable due to equipment or procedural failure. Law enforcement has strict protocols to follow for breathalyzer tests. In other cases, questioning the DRE report and testimony may be the best approach, since DREs are subject to cross-examination on their evaluation and conclusions.

Even police testimony is vulnerable since police officers may be biased or mistaken. They may also cut corners or fail to follow legal procedures or abide by constitutional protections. In these cases, DWI and DUI evidence may be tainted and doubtful. An attorney often objects to unlawfully obtained evidence or questions weak evidence to create doubt.

An attorney may also advise you to take proactive steps to lessen some consequences, such as voluntarily installing an IID before sentencing to avoid license suspension and fines if your case is alcohol-related. Your DWI defense lawyer may also plea bargain under the newly amended DWI/DUI law to get you a reduced sentence. You may not know how to defend yourself against a DUI or DWI without legal education and training. In essence, an attorney is indispensable.

Get Answers to Your Questions about DWI vs. DUI Laws in New Jersey

If police have arrested you for driving while intoxicated or driving under the influence of a substance aside from alcohol in New Jersey, the unrelenting hand of the justice system looms large. Seeking legal counsel to derail the prosecution’s case and work toward avoiding a conviction is the right move. Get in touch with a DWI and DUI defense lawyer at our office for immediate assistance. We serve the entirety of Burlington County, appears in municipal courts in Evesham, Delanco, Lumberton, Pemberton, Riverside, Mount Holly, and many others on a weekly basis. Contact us for a free consultation today at 609-850-8284 or begin a chat to get started.

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Burlington Office

525 Highway 73,
Suite 104, Marlton,
New Jersey 08053
Phone: 609-850-8284
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100 Horizon Center
Boulevard, Hamilton,
New Jersey, 08691
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Point Pleasant Office

3828 River Road,
Suite A, Point Pleasant,
New Jersey 08742
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Middletown Office

180 Kings Highway,
Middletown Township,
New Jersey 07748
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