IS JAIL TIME MANDATORY FOR Those Convicted of DWI IN NEW JERSEY?

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Jail is mandatory for both second and third DWI offenders. Second offenders face a mandatory jail term of between two and 90 days, although judges typically commute a two-day jail term to 48 hours in an Intoxicated Driver Resource Center [“IDRC”]. Third offenders face a mandatory jail term of 180 days plus IDRC, although up to 90 days of the jail term may be credited for each day the offender spends in an in-patient alcohol rehabilitation facility.

Jail is not much of a concern for first offenders. The judge has discretion to impose a jail term of up to 30 days, but this is rarely done. Of the thousands of DWI cases I have handled, only two first offenders received jail. In the first, a person died. In the other, a person received a significant brain injury.

Aside from jail, the differences between minimum and maximum DWI penalties are well defined and often dependent on the breath or blood alcohol content [“BAC”].

There is an indefinite driving privilege forfeiture [“DPF”] and mandatory installation of an alcohol ignition interlock device [“AIID”]. The AIID is installed in the one vehicle which the convicted person will drive, whether that vehicle is owned, leased, or borrowed. The AIID is required in all cases except first offense drugged driving cases where those convicted suffer a 7–12-month DPF and no AIID.

In alcohol cases, the DPF ends for first offenders with a BAC less than .15 on installation of an AIID and acquisition of a physical driver’s license bearing the “interlock required” imprint on the license.

For first offenders with a BAC of .15 or higher, the DPF ends on installation of the AIID. At that point, a definitive DPF of two-to-four months begins, followed by a 9–15-month period of AIID restriction.

Second or subsequent DWI offenders also suffer an indefinite DPF ending on installation of an AIID. But if such offenders certify that they do not own, lease, or have access to a vehicle, the definitive DPF will begin on conviction and end on demonstrating to the New Jersey Motor Vehicle Commission [“MVC”] that they have a vehicle with an AIID available to them. If the DPF extends beyond four years, MVC requires written and driving tests as if a new driver.

Anyone convicted of DWI must attend an IDRC for no less than two 6-hour sessions on consecutive days or one 48-hour session. Also, there are mandatory assessments totaling $357, court costs of $33, and administrative surcharges and fees totaling between $3,989 and $5,639. Those convicted also face significant automobile insurance premium increases–sometimes fourfold. The record of conviction remains on the driver’s record forever; it cannot be expunged.

For first offenders with no BAC result or with a result less than .10 percent, the fine ranges from $250 to $500–a difference is $250. All other consequences are the same.

For first offenders with a BAC of .10 but less than .15, fines range from $300 to $500–a difference of $200. With an AIID restriction ranging between seven and 12 months, the difference in AIID restriction is five months. All other consequences are the same.

For first offenders with a BAC of .15 or higher, the fine ranges from $300 to $500–a difference of $200. The law requires a four-to-six-month DPF followed by an AIID restriction between nine and 15 months.

For second offenders, the fine ranges between $500 and $1,000. The mandatory DPF is one-to-two years followed by a two-to-four-year AIID restriction. All second offenders must do 30 days community service as well.

For third offenders, there is an eight-year DPF followed by the two-to-four-year AIID restriction. There is no difference between minimum and maximum penalties.

One interesting difference between DWI and criminal defense practice is that the downside risks associated with losing at a DWI trial are so well-defined and generally minimal that any attorney worth his or her salt will try more DWI cases than criminal cases. There is just not that much downside risk associated with a guilty finding after trial versus a guilty plea. While the existence of other charges may alter this analysis, if the charges include nothing more than a DWI accusation and simple traffic offenses, trial always brings the chance of acquittal.

Will I Just Be Assumed Guilty for a Second or Subsequent DWI Charge?

No one is ever assumed guilty, but a prior conviction will factor into a prosecutor’s assessment of a case and how hard they will push it. There is a big difference between getting a second offense one year after the first offense versus nine years after the first offense.

But there is no assumption of guilt. The state still must prove each case beyond a reasonable doubt on the merits of the case. Of course, if you are in New Jersey, that task is probably more manageable because all trials are bench trials. I took one case of a third offender up to the U.S. Supreme Court to get a jury trial because the penalties, including that six-month jail term, are very significant. But while the New Jersey Supreme Court split on the question, the U.S. Supreme Court declined to hear the case. So, for the foreseeable future, unless there is an increase in DWI penalties or a reclassification of DWI as a crime, we are going to have all DWI trials in New Jersey will be bench trials.

Who Is My Jury if My DWI Case Goes to Trial?

Outcomes depend very much on the personality of your jury, which in New Jersey DWI cases is one individual we call the municipal court judge. That’s the person with the black dress sitting at that big desk in front of the courtroom. There is a political aspect. In New Jersey, local mayors appoint municipal court judges. Municipal court judges get three-year terms with no tenure. They get reappointed at the pleasure of whoever is running the town at the time. So, in that sense, there is some pressure to convict because one of the quickest ways for a judge to not get reappointed is to have people complain about them. And sometimes, the biggest complainers are the local police, who often have the ear of the appointing officials.

However, there is pushback from a state judicial branch agency called the Administrative Offices of the Courts [“AOC”]. New Jersey is unique because our state constitution gives the judicial branch much more power than any other judicial branch in any other state. Our Supreme Court has the authority to make rules of procedure that supersede any legislative rules, although the legislature maintains pre-eminence when it comes to substantive law. Our Supreme Court is trying to de-politicize the municipal courts. This is causing tension between the AOC and some municipalities.

Our legislature is also starting to get the message because of money. Legislative action is encouraging municipalities to join together and have joint municipal courts or to share their facilities. The exciting thing about that is, if you get a joint court, the Governor is the one who appoints the judge, not the local politicians. This shifts the politics away from the local power centers. Some towns favor joint courts because it saves them money. But some local politicians want to maintain their local political power and patronage and fight to keep their individual court.

The battle between patronage and efficiency often drives how things go at the municipal level. Some municipal court judges are lovely, very fair, and will bend over backward to find reasonable doubt. Some are reasonable but biased toward the state. Some are just awful and behave like a second prosecutor. I have a special-high-intensity-tension list of about seven judges. The only weapon we have as a defense attorney in such courts is to make a record, cross every T and dot every I, and remind the judge constantly, even to the point of being threatened with contempt, that they have a specific job to do—i.e., be fair and impartial and follow the law. Sometimes vigorous advocacy can lead to unfounded contempt accusations. I have been found in contempt six times but vindicated on appeal every time.

For more information on Second/Subsequent DWI Offense in New Jersey, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.