|
FREE NJ DWI EVALUATION
How Will Prior Convictions for DWI
Effect My Current DWI
Charge?
If you have been convicted of DWI
anywhere, you may be facing enhanced penalties for loss of license, fines, and
incarceration.
If you have a prior conviction or
convictions from another State, those "priors" may be counted against you for
sentencing purposes in New Jersey, as long as the conviction is "of a
substantially similar nature in another jurisdiction, regardless of whether that
jurisdiction is a signatory to the Interstate Driver License Compact" and the
prior conviction "shall constitute a prior conviction under this subsection
unless the defendant can demonstrate by clear and convincing evidence that the
conviction in the other jurisdiction was based exclusively upon a violation of a
proscribed blood alcohol concentration of less than 0.08%." This is based
on the New Jersey DWI statute, http://www.dwi-nj.com/parts/dwilaw.html . Depending on the circumstances of your out of state prior
convictions, there may be arguments to avoid enhanced penalties in New Jersey if
you are convicted on the current charge.
For subsequent offenders, "A person who
has been convicted of a previous violation of this section need not be charged
as a second or subsequent offender in the complaint made against him in order to
render him liable to the punishment imposed by this section on a second or
subsequent offender, but if the second offense occurs more than 10 years after
the first offense, the court shall treat the second conviction as a first
offense for sentencing purposes and if a third offense occurs more than 10 years
after the second offense, the court shall treat the third conviction as a second
offense for sentencing purposes."
Confusion occurs with older multiple
convictions. A case called
State v. Burroughs,
349 N.J.Super. 225 (App. Div. 2002) is the current law on
this sentencing issue. The Court in Burroughs held that although more
than ten years elapsed between Burroughs first and second drunk driving
offenses, where less than ten years elapsed between his second and third drunk
driving offenses, he must now be treated as a third offender. Burroughs
had convictions in 1982, 1998 and then in 2000.
The Court
stated: "But once having been granted such leniency, the defendant has no vested right to
continued "step-down" status where he commits a subsequent drunk driving
offense. The earlier offense is not "forgiven." Having been granted leniency by
virtue of the infraction-free lapse of time between the two earlier violations,
the offender has received his reward for good conduct and is entitled to no
further consideration." Id. at 227.
A fourth or
greater conviction will always be treated as a third conviction for sentencing
purposes, regardless of dates of conviction. For example, convictions from
1985, 1986 and 1990, and now a charge in 2006 would result in potential 4th
offender status, with a pending penalty of 10 years loss of New Jersey driving
privileges, fines, surcharges, and 180 days in county jail, 90 of which are
mandatory in jail, and credit for up to 90 days in an in-patient alcohol or drug
rehabilitation facility.
As part of any DWI
defense, prior convictions should be reviewed to see if any of the prior cases
can be reopened and challenged to determine if the convictions can be
overturned. If they can, a third offense may then be treated as a second
offense, or a second offense may be treated as a first offense. This
process is called Post Conviction Relief.
None of these
sentencing scenarios will occur unless or until you are convicted of the current
charge.
Please contact me to
discuss your questions regarding this sentencing
issue.
856-889-5181 cell
toll free 1-866-DWI-NJ.com
1-866-394-6526 office
856-429-7726
fax |