- posted: Nov. 10, 2025
In Part One of our Affirmative Defenses to New Jersey DWIs series, we discussed how Psychiatric, Necessity, and Glove Box defenses can be raised to answer DWI charges depending on the facts of the case.
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.
Three Additional Affirmative Defenses
In addition to the Psychiatric, Necessity, and Glove Box DWI affirmative defenses, three additional affirmative defenses that may be raised are:
Jurisdiction: Under the Double Jeopardy Clause of the Fifth Amendment, persons may not be prosecuted for the same offense twice in a particular jurisdiction once acquitted. Courts’ interpretations of the Double Jeopardy Clause have extended to protect against defendants being punished multiple times for the same offense. Though DWIs, under Personal Jurisdiction, may be prosecuted in any jurisdiction in which the car was driven, it must be proven beyond a reasonable doubt that the car was driven through said jurisdiction. Otherwise, a motion to dismiss may be filed.
Entrapment: Entrapment, an often misunderstood legal concept, occurs when law enforcement or other government officials induce an individual to commit a criminal act by implanting in an innocent person’s mind the disposition to commit one for the purposes of pursuing a prosecution against the individual. Though a valid affirmative defense, entrapment under New Jersey common law differs from the traditional definition in that it centers around Due Process. Entrapment occurs when a court finds that the conduct of law enforcement or government officials in making an arrest was so mishandled that it represented an abuse of power, undermining the role of the government, and was manifestly unjust.
Operation:Similar to the Glove Box Defense, the Operation defense rests on the notion that the defendant, while in the vehicle, did not operate it while intoxicated. The State may prove operation, in three standard ways: direct evidence, circumstantial evidence, or the defendant’s admissionA DWI arrest can be made if a person is found in their vehicle while intoxicated, including while asleep. However, for such an arrest to lead to a conviction, the State must prove that the defendant intended to operate the vehicle while intoxicated. This intent must be proven beyond a reasonable doubt. To overcome this, defendants can rebut this purported intention with evidence such as personal testimony, video footage, and vehicle computer data.
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. 10, 2025
In Part One of our Affirmative Defenses to New Jersey DWIs series, we discussed how Psychiatric, Necessity, and Glove Box defenses can be raised to answer DWI charges depending on the facts of the case.
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.
Three Additional Affirmative Defenses
In addition to the Psychiatric, Necessity, and Glove Box DWI affirmative defenses, three additional affirmative defenses that may be raised are:
Jurisdiction: Under the Double Jeopardy Clause of the Fifth Amendment, persons may not be prosecuted for the same offense twice in a particular jurisdiction once acquitted. Courts’ interpretations of the Double Jeopardy Clause have extended to protect against defendants being punished multiple times for the same offense. Though DWIs, under Personal Jurisdiction, may be prosecuted in any jurisdiction in which the car was driven, it must be proven beyond a reasonable doubt that the car was driven through said jurisdiction. Otherwise, a motion to dismiss may be filed.
Entrapment: Entrapment, an often misunderstood legal concept, occurs when law enforcement or other government officials induce an individual to commit a criminal act by implanting in an innocent person’s mind the disposition to commit one for the purposes of pursuing a prosecution against the individual. Though a valid affirmative defense, entrapment under New Jersey common law differs from the traditional definition in that it centers around Due Process. Entrapment occurs when a court finds that the conduct of law enforcement or government officials in making an arrest was so mishandled that it represented an abuse of power, undermining the role of the government, and was manifestly unjust.
Operation:Similar to the Glove Box Defense, the Operation defense rests on the notion that the defendant, while in the vehicle, did not operate it while intoxicated. The State may prove operation, in three standard ways: direct evidence, circumstantial evidence, or the defendant’s admissionA DWI arrest can be made if a person is found in their vehicle while intoxicated, including while asleep. However, for such an arrest to lead to a conviction, the State must prove that the defendant intended to operate the vehicle while intoxicated. This intent must be proven beyond a reasonable doubt. To overcome this, defendants can rebut this purported intention with evidence such as personal testimony, video footage, and vehicle computer data.
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.
