How Does A DWI Become A Felony Charge In New Jersey?

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In New Jersey there really is no such thing as felony DUI, because it is never classified as a crime. It is always a traffic offense, and consequently you are not looking necessarily at state prison time, but there are criminal overtones when a DUI is associated with other misconduct. You see that for such crimes in New Jersey as vehicular assault, vehicular homicide, endangering the welfare of a child, or driving while your privilege is revoked from a previous DUI conviction. So while DUI itself is not criminal, it certainly can have some relevance in certain criminal prosecutions.

How Often Do You See DUI Cases That End Up With Felony Affiliations?

We have a new crime in New Jersey and that is this crime of driving while revoked from a DUI. That went into effect on August 1^st of 2011, and it criminalizes the act of driving, irrespective of whether one is intoxicated at the time. The way DWI becomes implicated in that particular crime is that if a person who is driving a second time while revoked for a first DUI, that is a crime. If a person is driving for the first time while revoked for a second subsequent DUI, that is a crime. In New Jersey, we classify crime as first, second, third or fourth degree with first being the most serious, fourth being the least serious.

Driving while revoked from a DWI is classified as a fourth degree crime, but what the legislature did is make it so that if you got convicted of that you had to do at least six months in the county jail or state prison depending on where they classify you. That distinguishes it from other fourth degree crimes. Most third and fourth degree crimes create a presumption of non-incarceration if it is the first criminal offense for a person. And even if it was a second criminal offense there is a high probability of probation with no jail. But this particular crime of driving while revoked while on suspension for DUI is pretty significant, because there is no way to get around six months in jail.

It is a parole ineligibility stipulation that is mandated by statute. That is the one we see the most of. It is actually pretty simple, but the way they wrote the statute is complicated. If you are revoked for a DUI you cannot drive in the state of New Jersey, because if they catch you, you will go to jail for six months. That is what it boils down to. The DWI is not directly related, it is an element of the offense. You have to be revoked because you were convicted of a DUI previously. Most counties in New Jersey are not plea bargaining those. They are making you either plead guilty, go into trial, and if you go to trial I hate to say it, it is one of the easiest charges for the state to get a conviction for because the elements are so simple to prove.

How Are DWI’s With Felony Affiliations Penalized If There Are Prior DWIs As Well?

Obviously even though a DWI is not a crime, for sentencing on criminal offenses it becomes a factor, particularly if the crime has some relationship to driving. I am talking about things like vehicular assault, vehicular homicide, endangering the welfare of a child. I would say after the driving while revoked charge, the ones I have seen the most of are the endangering the welfare of a child believe it or not, because you are generally dealing with relatively low levels of intoxication. You are dealing with people who have had something to drink.

Your defendants tend to be more middle-class or affluent, and they do not have the same concept of criminality that people charged with more traditional crimes would feel. You also see that to a lesser extent with vehicular assault and vehicular homicide, but the fact of the matter is there are not that many of them out there. When they happen they have serious consequences, and if there are some acknowledgements of fault, the cases will get plea bargained. Just to give you an example, vehicular assault, if there is a DWI attached to it, the classification would be classified as a third of fourth degree crime, and depending on the strength of the evidence and whether it is a first, second, or third DUI, that affects the plea offer.

A third offense DUI, than you are going to jail for six months and losing your license for ten years. But that is on a traffic offense. It will affect the way a judge views sentencing on the criminal offenses. While you may not ordinarily get jail, the judge will look at a prior DWI history and hold that as an aggravating factor that will put you in jail. Charges of endangering the welfare of a child are interesting because the law is not terribly developed in the subject of DUI and endangerment. Most child endangering cases, about ninety percent of them, tend to be sexual in nature. So we are not dealing with those kinds of things, but nonetheless it is a second degree crime.

As a second degree crime, which is a very serious crime, the person who gets convicted is looking at five to ten years in state prison, and there is no presumption of probation, because of the seriousness of the crime. If you get convicted the probability is you are going to do some prison time. Obviously these are very serious offenses that you have to deal with, and significantly because of the stakes, very often plea bargains, the irony is the more serious the charges, the greater the probability of a plea bargain is as opposed to going to trial.

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