- posted: Nov. 03, 2025
Having practiced in criminal defense for almost thirty years, EBM Law is also highly experienced in municipal DWI cases across New Jersey. From simple cases that can be resolved in weeks to complex cases that take months or years, EBM Law understands that no two DWI cases are the same. With each unique fact pattern comes the potential for our firm to defend you using a variety of affirmative defenses established in New Jersey common law.
An affirmative defense is an argument a defendant makes in response to an allegation, essentially admitting that the Prosecution’s allegation(s) are true, but introducing new evidence that, if proven, could convince the judge that the defendant’s illegal actions were either excused or justified.
In a New Jersey DWI case, when the defense argues an affirmative defense, there exists no burden of proof the defendant must overcome in proving the affirmative defense is true. The burden, in this case, shifts to the Prosecution, who must disprove the affirmative defense beyond a reasonable doubt. As such, to facilitate reasonable doubt, our offices collect and submit evidence to the court that supports the plausibility of any affirmative defense we argue on behalf of our clients.
Examples of Affirmative Defenses in New Jersey DWI Cases:
DWIs are strict liability offenses, which means that the defendant’s criminal intent (mens rea) need not be proven for the defendant to be found guilty. Only the criminal act (actus reus) must be found to have occurred. Nevertheless, circumstances regarding the condition of the defendant or the events leading up to the intoxicated operation may be raised as affirmative defenses. Some common law affirmative defenses our offices have argued on behalf of DWI clients include the following:
Psychiatric: A defendant’s preexisting psychiatric condition, such as ADHD, Autism Spectrum Disorder, PTSD, or Anxiety Disorder, may be mistaken by law enforcement as intoxication. In such cases, the defendant’s condition may also affect their ability to perform a field sobriety test, which is meant to be an objective measure of the defendant’s observable intoxication. Failure by law enforcement to take such conditions into account when making a DWI arrest in New Jersey may be raised as an affirmative defense.
Necessity: Under certain circumstances, a defendant’s operation under the influence may be lawfully excused if it was exigently necessary for the defendant to operate a vehicle while intoxicated, such as in an emergency situation. For this defense to be employed, the following elements of the case must be true:
- An emergency situation must have occurred that was not the fault of the defendant.
- The emergency situation must be so time-sensitive that harm to the defendant or others he/she was protecting must have been expected.
- The emergency situation provided no reasonable opportunity to avoid harm/injury without operating a vehicle under the influence.
- The injury that may have been incurred had the defendant not operated a vehicle under the influence must be objectively worse in nature than the defendant’s offense.
Glove Box: A “Glove Box” affirmative defense is one in which it is argued that the defendant consumed alcohol after the vehicle ceased to be operated, thus making the defendant’s intoxication irrelevant to the alleged offense. To prove a “Glove Box” defense, there must exist very strong evidence supporting that alcohol was consumed only after the vehicle ceased to be operated.
Our Approach:
When you retain EBM Law to represent you in a New Jersey DWI case, our offices will review the facts of your case and make a determination if one of the above or other affirmative defenses to your allegations can be argued in court. To prove our affirmative defenses, we take extensive steps such as hiring experts, subpoenaing witnesses, and ensuring we receive and review ALL the evidence regarding your case to build reasonable doubt around the Prosecution’s disproval of our defense.
EBM Law has represented thousands of clients in New Jersey DWIs and we are proud of the effective results we continue to earn for our clients across the state. If you have any questions about affirmative defenses, New Jersey DWIs, or any criminal matter, please contact our offices at (732) 249-9933.
- posted: Nov. 03, 2025
Having practiced in criminal defense for almost thirty years, EBM Law is also highly experienced in municipal DWI cases across New Jersey. From simple cases that can be resolved in weeks to complex cases that take months or years, EBM Law understands that no two DWI cases are the same. With each unique fact pattern comes the potential for our firm to defend you using a variety of affirmative defenses established in New Jersey common law.
An affirmative defense is an argument a defendant makes in response to an allegation, essentially admitting that the Prosecution’s allegation(s) are true, but introducing new evidence that, if proven, could convince the judge that the defendant’s illegal actions were either excused or justified.
In a New Jersey DWI case, when the defense argues an affirmative defense, there exists no burden of proof the defendant must overcome in proving the affirmative defense is true. The burden, in this case, shifts to the Prosecution, who must disprove the affirmative defense beyond a reasonable doubt. As such, to facilitate reasonable doubt, our offices collect and submit evidence to the court that supports the plausibility of any affirmative defense we argue on behalf of our clients.
Examples of Affirmative Defenses in New Jersey DWI Cases:
DWIs are strict liability offenses, which means that the defendant’s criminal intent (mens rea) need not be proven for the defendant to be found guilty. Only the criminal act (actus reus) must be found to have occurred. Nevertheless, circumstances regarding the condition of the defendant or the events leading up to the intoxicated operation may be raised as affirmative defenses. Some common law affirmative defenses our offices have argued on behalf of DWI clients include the following:
Psychiatric: A defendant’s preexisting psychiatric condition, such as ADHD, Autism Spectrum Disorder, PTSD, or Anxiety Disorder, may be mistaken by law enforcement as intoxication. In such cases, the defendant’s condition may also affect their ability to perform a field sobriety test, which is meant to be an objective measure of the defendant’s observable intoxication. Failure by law enforcement to take such conditions into account when making a DWI arrest in New Jersey may be raised as an affirmative defense.
Necessity: Under certain circumstances, a defendant’s operation under the influence may be lawfully excused if it was exigently necessary for the defendant to operate a vehicle while intoxicated, such as in an emergency situation. For this defense to be employed, the following elements of the case must be true:
- An emergency situation must have occurred that was not the fault of the defendant.
- The emergency situation must be so time-sensitive that harm to the defendant or others he/she was protecting must have been expected.
- The emergency situation provided no reasonable opportunity to avoid harm/injury without operating a vehicle under the influence.
- The injury that may have been incurred had the defendant not operated a vehicle under the influence must be objectively worse in nature than the defendant’s offense.
Glove Box: A “Glove Box” affirmative defense is one in which it is argued that the defendant consumed alcohol after the vehicle ceased to be operated, thus making the defendant’s intoxication irrelevant to the alleged offense. To prove a “Glove Box” defense, there must exist very strong evidence supporting that alcohol was consumed only after the vehicle ceased to be operated.
Our Approach:
When you retain EBM Law to represent you in a New Jersey DWI case, our offices will review the facts of your case and make a determination if one of the above or other affirmative defenses to your allegations can be argued in court. To prove our affirmative defenses, we take extensive steps such as hiring experts, subpoenaing witnesses, and ensuring we receive and review ALL the evidence regarding your case to build reasonable doubt around the Prosecution’s disproval of our defense.
EBM Law has represented thousands of clients in New Jersey DWIs and we are proud of the effective results we continue to earn for our clients across the state. If you have any questions about affirmative defenses, New Jersey DWIs, or any criminal matter, please contact our offices at (732) 249-9933.
