I often have clients ask me if 1) a driving while intoxicated (DWI) charge is a criminal offense and 2) if a DWI conviction can be expunged off the defendant’s record? The short answers are no and no.

A driving while intoxicated (DWI) conviction is not a criminal offense in New Jersey, it is a traffic offense. It will appear on your driver’s abstract with the New Jersey Department of Motor Vehicles (DMV) but it should not appear on a criminal background check because it is not a crime. DWI charges are governed by Title 39, the motor vehicle code, and not Title 2C, the New Jersey criminal code.

DWI convictions can not be expunged off your record. They are not criminal offenses so they are not subject to the expungement statutes. Moreover, the State can not allow DWI convictions to be expunged off your record because there are enhanced penalties for subsequent convictions. For example, I recently had a client contact me who had a DWI in 1983 and then another DWI in 2009. He recently received his third DWI charge in 2010. If the State allowed him to expunge the 1983 offense off of his record, it would not show up on his driver’ abstract and his 2010 offense would only be considered his second offense for DWI. However, because expungements of DWI offenses are not allowed, his complete abstract shows that this 2010 offense would be his third conviction for DWI which is a drastic difference for the defendant in terms of sentencing. A second offense DWI requires a two (2) year license suspension and two (2) days in jail (which is typically converted to the Intoxicated Driver Resource Center (IDRC) alcohol education classes). On the other hand, a third DWI conviction requires a mandatory ten (10) year license suspension and 180 days in jail (90 days of which can be served at an approved in-patient rehabiliation facility). As you can see, the State cannot allow the expungement of DWI convictions because of situations like this.