Learn What is BAC and How a NJ DWI/DUI Proven
There is a difference between Blood Alcohol Content (BAC) and Breath Alcohol   
Concentration (BrAC). Breath Alcohol Concentration (BrAC) is utilized most often by law  
enforcement to extrapolate or estimate an individual's Blood Alcohol Content (BAC). The best
and most accurate way to determine Blood Alcohol Content (BAC), is through a blood
sample. Since it is very difficult to provide medical personnel to obtain this sample in field
situations (while the officer is determining if an individual is Driving While Intoxicated (DWI) or
Driving Under the Influence (DUI)), breath testing devices are utilized to determine Breath
Alcohol Concentration (BrAC) which typically can be used to equivalate Blood Alcohol
Content (BAC). Breath testing devices rely on an a ratio that equates the parts of alcohol found
in the breath to the correlating amount of alcohol found in blood.  A Blood Alcohol Content
(BAC) of 0.20% means that there is 1 gram of alcohol per every 500 grams of blood.  The
courts of all 50 states have determined that both the Breathalyzer machines and Alcotest
machines are scientifically accurate in determining BAC levels.  The only way to prove the
BAC level taken by the police is inaccurate is by:
1) Proving a BAC test taken within a short period of time after being released by the police
has a substantially different result.
2) Proving that the police operated the machinery incorrectly
3) Proving that the machine used by the police was not operating properly
4) Proving  the machine used to test was operating improperly
5) Proving the machine used was not properly certified
6) Proving the operator of the machine was not properly licensed or had an expired license

If a Breath Test or Blood Test is not given the police may still prove intoxication for a DWI or DUI.  
BAC in this situation can be determined by physical tests.  The most commonly used tests are: The
walk and turn, The one legged stand, Counting numbers or the alphabet, or the HGN Test.  

HGN is the most commonly used test and is commonly known as the  Horizontal Gaze
Nystagmus Test.  The HGN test uses a penlight or a finger which is quickly waved across the
subject’s vision to see that both eyes move in tandem,at about a one foot distant –and the
driver is asked to follow the light or finger with the eyes.   During the HGN Test the police
officer is looking for four indicators of impairment: if the eye cannot follow a moving object
smoothly, if jerking is distinct when the eye is at maximum deviation, is the driver following the
instructions given to hold his head straight without movement, and if the angle of onset of
jerking of the eyeball, instead of smoothly tracking, is within 45 degrees of center.   If, between
the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater.

At the Law Office of H. Scott Aalsberg, all of our attorneys are experienced at winning DUI
and DWI offenses. At the Law Office of H. Scott Aalsberg we are experienced at winning
cases. Each attorney has a minimum of 18 years of experience doing just that.   Hiring the
right attorney is the best way of increasing your chances of winning your case. The second
most important way of winning your case is giving your attorney enough time to prepare the
case.  Many clients delay or procrastinate in hiring a DWI attorney and this is the single
biggest factor in getting the best result.  The sooner your attorney gets started putting a
defense together on your case the more time the attorney has to find and prepare the proper
defense for you.  You should hire your attorney within 48 hours of being arrested.  Waiting
longer can jeopardize the result obtained in your case and the penalties for a DWI are severe

Mandatory fines and penalties 1st Offense N.J.S.A. 39:4-50

Alcohol or drug related DWI or DUI with BAC greater than 0.08% but less than 0.10%
License Loss: 3 months
Jail: Up to 30 days
$250–$400 fine
$230 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for 3 years) surcharge
$75 to Neighborhood Services Fund Up to 30 days 12–48 hours IDRC*

Alcohol or drug related DWI or  DUI with BAC of 0.10% or greater
License loss 7 to 12 months
Jail up to 30 days
Fine $300–$500
$230 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for 3 years) surcharge
$75 to Neighborhood Services Fund Up to 30 days 12–48 hours IDRC*
Ignition Interlock in discretion of Judge from 6 months to 1 year

Alcohol or drug related DWI or DUI with BAC greater than 0.15
Same Penalties as above for .10 or great BAC plus mandatory ignition interlock for 6 months to 1 year

Refusal to submit to a properly requested Alcotest, Blood Test or Urine Test mandates the same basic
penalties as a DWI or DUI but has a mandatory minimum of 7 months loss of license and mandatory ignition
interlock on all offenses for at least 6 months on a 1st offense with a maximum of 3 years for a 3rd offense

Repeated NJ DUI or DWI convictions

2nd Offense within 10 years of 1st Offense DWI or DUI
Offense License loss Fines, fees & surcharges Prison term Community service requirement
2nd offense within 10 years 2 years $500–$1,000 fine
$280 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for 3 years) surcharge
$75 to Neighborhood Services Fund 48 hours–
2 to 90 days in Jail
Community Service for 30 days
12–48 hours IDRC*

3rd offense within 10 years of 2nd offense DWI or DUI
10 years loss of license
180 Days in Jail (up to 90 may be spend with court approval in an inpatient alcohol program)
$1,000 fine
$280 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,500/year (for 3 years) surcharge
$75 to Neighborhood Services Fund
Jail for 180 days up to 90 days (can reduced if allowed by court to be served in an approved alcohol
inpatient program)
12–48 hours IDRC*

Related NJ DWI and DUI Offenses

Driving or riding with an open container
Offense Fines    Community service
1st   $200                   10 Days
2nd   $250                  10 Days

Driving with a Suspended License Due to a DWI or DUI (39:3-40)
License loss                                        Fines or surcharges                                 Prison term
Additional 1–2 years           $500 fine $250/year (for 3 years) surcharge              10–90 days

Driving while possessing drugs or Possession of CDS in a Motor Vehicle (39:4-49.1)
License loss           Fines or surcharges
2 years                      Minimum $50 fine

*IDRC - Intoxicated Driver Resource Center
*AERF - Alcohol Education and Rehabilitation Fund
Underage drinking may cause a six-month delay in getting a license
Alcohol and drug-related offenses require completion of an alcohol screening and evaluation program

Failure to pay a NJ DWI or DUI surcharges will result in Indefinite suspension of your NJ driving privileges, a
civil action filed in State Superior Court by MVC. including securing a lien against your property, garnishing
your wages or other similar action
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Experienced DWI/DUI Lawyer
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A NJ DWI (Driving While Intoxicated) or NJ DUI (Driving While Under the
Influence) charge is proven by your blood alcohol concentration (BAC).
Your BAC can be tested with a simple Breathalyzer, Alcotest, Blood Test,
or road side physical tests

In New Jersey, a person with a BAC of 0.08% or greater who operates a
motor vehicle or a boat is considered to be driving under the influence
(DUI).   Being convicted of a DUI or DWI is a serious offense, carrying
heavy penalties including:   Fines, fees, surcharges, Jail time and
Community service.
 The penalties in New Jersey for DWI and DUI are
the same
Limited Payment Plans
H. Scott Aalsberg, Esq.