Are Temporary Licenses Available In New Jersey?
No. New Jersey is an odd ball in a couple of respects. For one thing in New Jersey, most states would administratively revoke you immediately, and you have to deal with a parallel administrative hearing to deal with your privileges to drive. That would not be considered criminal, but regulatory in nature. We do not have that in New Jersey. So consequently if you get charged with a DWI, there are no consequences unless and until there is a conviction. As a result, the only hold the court has on you is that you have to show up when you get a notice to appear. Other than that, you can drive, go about your business and do whatever you do normally.
It is not like you have to get an interlock on your car or anything else while the charges are pending. In terms of it being criminal, there is a bill that has been proposed in our state legislature to make a fourth offense DUI, a third degree criminal charge. I do not think it is going to get passed, but it is out there. People are thinking about it. They are thinking about it in light of a recent Supreme Court case called State vs. Denzelbeck where that defendant, who I happened to represent, raised a question of whether the third offense penalties are so serious as to warrant a jury trial, even though they do not call it a crime, to treat it as if it were a crime. The Supreme Court said close, but no cigar.
It is very serious, but you are not entitled to a jury trial. But that got some legislatures thinking that there should be a point at which DWI is to be considered a crime. That was the genesis of this bill to make a fourth offense DUI a crime.
What Sort Of Defenses Are Used In DWI Cases With Felony Associations?
Frankly, a child endangerment case involving a DUI is not much different than a straight DUI case, except for the fact that a child happens to be in the car. We have a disorderly person’s offense, which most states would call it a misdemeanor for operating a vehicle while under the influence with a child less than eighteen years of age in your car. Part of the area where the law may be undeveloped is whether even child endangerment applies. Nobody’s raised this question yet, but the idea is that the legislature made a specific offense for driving while intoxicated with a kid in the car.
If the theory of the prosecution on the endangerment case is limited to just that, driving while under the influence with a kid in the car, there is the argument that a more specific offense, the disorderly person’s offense, should prevent a prosecution of the more serious offense. Of course if there is an accident and then there are other factors that would eliminate their argument, but we are seeing a number of these endangering prosecutions where it is just a DWI, and in that sense when you go to trial, it is like no other DWI case except for the fact that you are pitching the defense to a jury rather than a judge, which brings us to another anomaly in New Jersey law.
When you have a case like that whether it is a vehicular assault, vehicular homicide, or child endangerment case, a jury hears the evidence on the crimes, but the judge is the one hearing the evidence on the traffic offense DUI. So it is not uncommon. The last child endangerment case I had the jury was going to acquit on the crime, but the judge still convicted my client on the DUI, even though as far as I was concerned the acts of the endangerment were exactly the same as simply driving the car while under the influence with the child in the back seat. Maybe you can view them as inconsistent results.
That is because of the distinction between DWI not being a crime and almost always being heard by a judge as a matter of fact, versus things like vehicular assault, vehicular homicide, or child endangerment which are crimes and are always heard by the jury to determine the facts. One thing I have noticed is we have a program dealing with first offense criminals called pretrial intervention. It is a once in a lifetime diversion from prosecution. The way it works is that the person essentially applies, and if they are accepted they are on a period of probation; under the law it is a minimum of six months, maximum three years. Really, it is a year to two years and it is like probation.
If you successfully complete the probation, you will not have any new charges, you abide by the conditions imposed, and they will dismiss the charges. The only criminal record you have is that you got this pretrial intervention diversion. It does not operate as a conviction, so if it gets dismissed that way and people say have you ever been convicted of a crime, your honest answer would be no. In a lot of these DWI child endangerment cases where there is no accident or aggravating factors, more often than not, prosecutors will consider applications for pretrial intervention even though it is a second degree offense. Understand for pretrial intervention, first and second degree offenses are generally discouraged from participation.
But I do see them admit a second degree child endangerment defendant into PTI in many occasions. If that is the situation the bottom line is you almost always recommend that to the client, because the downside risk on a second degree crime is so great compared to the very minor disadvantage of being disqualified from future diversions. For child endangerment, you are generally talking about defendants who are a little bit older. They are not kids. They have families. They understand what is going on, and when they do the risk or reward analysis, they will generally follow my recommendation and take the PTI. On the other hand, the prosecutor may take a harder stance.
There is a fourth degree crime of child endangerment under a different statute. It is a non-criminal statute. That is also an option that can be considered in those cases. That is a little bit harder of a choice, because you still walk out with a criminal record, but if you get convicted of a fourth degree crime, you are probably not going to prison, rather if you get convicted of a second degree crime the presumption is you are. Those are the choices that people have to face when dealing with child endangerment charges attached to a DUI. By the way, they are probably also going to be expected to plead guilty to the underlying DUI charge, depending on whether it is a first, second or third offense that has consequences on its own, but not a criminal conviction.
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