New Jersey DWI Attorney John Menzel

Factors That Enhance or Aggravate A DWI Charge

What Are Some Things That Could Potentially Enhance Or Aggravate A DWI Charge In New Jersey?

If there is an accident involved, that is an aggravating factor. If you have a high breath or blood test result, that is viewed as an aggravating factor. If a person has a bad driving record, that can be viewed as an aggravating factor. If a multiple offender gets their DWIs in close proximity to each other, like within a year or two or three that is viewed as an aggravating factor. Obviously, the more separation there is, the less significant it is for sentencing purposes. There may be other factors that are unique to an individual’s life such as health issues and things like that. The arguments for aggravating and mitigating circumstances are pretty much up to the creativity of the lawyer. Typical, in the vast majority of cases, there really are no aggravating factors and the sentencing range is so narrow that it does not matter.

Another mitigating factor is if there is a high reading or some other issue. In that case, it is always helpful to get an independent evaluation from a certified alcohol counselor or psychologist. If you fall in that category, for example if you are a first offender with a 0.15% breath or blood test result or higher, or if you have a DWI or refusal in your past, it is always a good idea to have an alcohol evaluation. That is important because you want it to be an honest evaluation. You want to use your health insurance because that helps to pay the cost. You want to do it not because the lawyer is telling you to do it, but because there are factors that make it appear as if there may be an issue with alcohol. By getting an honest evaluation, you get a clear picture. It does not matter whether a person has a problem with alcohol or does not have a problem with alcohol. If it turns out that there is no issue with alcohol, then the lawyer can say, “Your Honor, this is an isolated event, unlikely to recur. And it is not me saying it as the hired gun for my client; I am saying this based on the determination of an independent evaluator who has no dog in the fight”.

On the other hand, if it turns out that the person does have an issue with alcohol, then you want to follow whatever recommendations or further evaluation, education, or treatment that are made. Again, if at all possible, you want to use health insurance to defray the cause. This way, if a person loses, the pitch becomes that the rehabilitative purposes of the statute have been served. This person took it seriously, got an evaluation, learned there was an issue and is actually doing something about it. Whether there is an issue with alcohol or not is not that important, because either way, it is going to become a mitigating factor at sentencing.

The alcohol evaluation serves some other purposes as well. If a case has certain characteristics, the Intoxicated Driver Resource Centre has authority, independent of the court and independent of the Motor Vehicle Commission, to require the person to go on for further education, evaluation or treatment. Typically, IDRC looks at the prior record, whether there are prior DWIs, prior breath test refusals, prior charges related to alcohol such as consuming alcohol in a motor vehicle, possessing or alcoholic beverage containers in their vehicle. Those are red flags to them and may induce them to make a recommendation. Another red flag is if the breath test result is 0.15% or higher.

The third way that the IDRC may make a referral is through a questionnaire they use. It is a lengthy series of multiple choice questions in a short essay. Depending on how you answer their questions, they may base a recommendation for further education and evaluation treatment based on those answers. Generally, for most first offenders less than 0.15%, the vast majority of people who are evaluated are not recommended for further education, evaluation or treatment. However, most second offenders and third offenders are.

There is also some debate about whether third offenders can be sentenced by the court to IDRC because the statute is a little vague on that as well. In reality, there really is not much practical difference to the person who gets convicted, because by virtue of administrative authority, the IDRC and the Motor Vehicle Commission can reply IDRC as a prerequisite to reinstatement of the third offender’s driver’s license after about nine years. Eventually, you are going to have to do it one way or the other, whether you are sentenced by the court or applied for administrative leave by the Motor Vehicle Commission and Intoxicated Driver Resource Centre.

A Number of Factors Can Enhance or Aggravate A DWI Charge. For more information, call the law office of New Jersey DWI Attorney John Menzel, J.D. for an Initial Consultation at (732) 218-9090 and get the information and legal answers you’re seeking.

John Menzel, J.D.

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