As a NJ DWI lawyer, I am seeing more of this: drivers who were recently convicted of a DWI or Refusal continue to drive regardless of the suspension, and are stopped and charged with Driving While Suspended. General statistics suggest that more than half of suspended drivers drive during their suspension period.
The law on this issue has recently changed, and, the penalties for driving while suspended after a DWI have gotten significantly more severe.
As of August 1, 2011, a new law came into effect, making driving while suspended after a second or greater DWI a “felony” offense in New Jersey.
This law, found at N.J.S.A. 2C:40-26, says that it is a fourth degree crime (“felony” level – see below) to operate a motor vehicle if your license is suspended or revoked for a second or greater DWI or Refusal. If convicted of this charge, the term of imprisonment is a minimum of 6 months, up to 18 months. That means that you will definitely go to jail for 180 days, unless you can successfully defend the charge.
If you have been convicted of a first offense DWI or Refusal, and have already been convicted of Driving While Suspended while under suspension for the DWI or Refusal, and you get another Driving While Suspended charge, you are also subject to this fourth degree crime, and will go to jail for a minimum of 180 days if you are convicted.
Above, I call the fourth degree charge a “felony” level offense. In New Jersey, there are no felonies or misdemeanors, only indictable and non-indictable offenses. Non-indictable offenses are those that are dealt with in the Municipal Courts. Indictable offenses are handled in the county level Superior Court, unless they are downgraded to the Municipal Courts and amended to a non-indictable offense.
Even if you are a first offender for DWI and have been stopped for Driving While Suspended, the penalties are harsh: you face an additional license suspension of 1 to 2 years, which does not begin until the current DWI suspension period ends. In addition, the you must be sentenced to 10 to 90 days in jail.
There are many legal issues that arise from this new law.
For instance, if you had a prior conviction for DWI more than 10 years ago, and you have a current recent conviction, you will likely be subject to this new law, even though you received the benefit of a “step-down” in sentencing, and you were sentenced as a second offender, but to a first offender’s sentence. You either received a 3 month (tier 1) suspension and fines, or 7 to 12 month (tier 2) suspension and fines. By definition, you are a second offender, but sentenced as a first offender due to the “step-down”. Under the new law as it is written, you are subject to the “felony” level charge of driving while suspended as a second or subsequent offender.
Also, if you are currently serving a suspension for a third offense DWI or Refusal, you were not advised of the extra penalties from this new law, if you were sentenced prior to August 2011. If you are serving a suspension for a second offense and were sentenced before August 2011, you have the same issue.
There are defenses to these situations, especially if you fall into the category of a second offender, sentenced as a first due to the step down, or you were not advised of the enhanced penalties. One way to challenge the current situation is to go back and review the original DWI and Refusal convictions. This is known as Post Conviction Relief.
Contact us for a free consultation on these issues.