New Jersey DWI Defenses

In New Jersey judges and prosecutors take very seriously when an individual is charged with Driving While Intoxicated.  Nonetheless, certain defenses do exist that can be beneficial to a defendant at trial or during negotiations with a prosecutor.  This article explains two of those defenses.


Often times when a client begins a consult at our law office they are totally unaware that an incredibly straightforward defense exists to their case.  That defense is often times related to the most basic proof that the prosecutor bears the burden of establishing: that the Defendant actually operated and/or had the intent to operate their vehicle.

Two prior New Jersey cases are illustrative of this point.  In State v. DiFrancisco, 232 N.J. Super. 317 (Law Div. 1988), DiFrancisco was charged with Driving While Intoxicated.  The issue considered by the Court was whether a person could be convicted of DWI when occupying an inoperable car.  At the time of the incident, DiFrancisco was found by police in vehicle that was disabled in a ditch and needed to be towed.  The Court in DiFrancisco ruled that one cannot even have the intent to operate a disabled vehicle.  As such, the appellate division found that Difrancisco should have been acquitted at the trial level.

Further touching upon the issue of operation was our Supreme Court in State v. Daly, 64 NJ 122 (1973).  In Daly, the Defendant was found in his vehicle over an hour and twenty minutes after the bar had closed.  Daly’s car was on, but no additional proof regarding operation had been presented by the prosecutor. Ultimately, the Daly Court ruled that in addition to starting a car, evidence of intent to drive the automobile at the time must appear.

Given the precedent described above, a defense attorney should always be doing a thorough client intake, file review and investigation to determine whether or not a prosecutor will be able to meet his or her burden of proof on this fundamental issue.

Speedy Trial:

An additional defense that can be submitted to a court relates to a Defendant’s speedy trial rights.  In assessing whether or not a defendant’s speedy trial rights have been violated, courts generally examine four main factors.  Specifically:  1) the length of the delay; 2) the reasons for delay; 3) whether or not a defendant asserted his speedy trial rights and 4) prejudice to a defendant from the delay.  These four factors are expressed in Barker v. Wingo, 407 US 514 (1972).

Generally, a speedy trial argument is a very fact sensitive inquiry.  An example of an instance where the factors cut in favor of a Defendant is expressed in State v. Cahill, 213 N.J. 253 (2013).  In Cahill the court concluded that a 16-month delay caused by the State was too lengthy.  The court dispensed with the State’s argument that the Defendant did not assert his speedy trial rights.  The Court took seriously defendant’s assertion that he suffered anxiety regarding the open charges and the fact that the license suspension could impact his ability to find employment.  In sum, the Court ruled that the factors militated in favor of defendant’s argument that he was deprived of his right to a speedy trial.

A defense attorney that is zealously advocating for his or her client should always consider whether or not an undue delay is taking place in the proceedings.  If so, a speedy trial motion should be contemplated as it may benefit the client.

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