Is Jail Time Mandatory For A Second Or Subsequent DWI In New Jersey?
As I mentioned before, there is mandatory jail for both second and third offenders. For second offenders, the statute requires a minimum of two days and a maximum of 90 days incarceration. Still, the statute also authorizes the judge to require attendance at the 48-hour version of the Intoxicated Driver Resource Center [“IDRC”]. For third offenders, jail is mandatory. There is very little difference between minimums and maximums for a DWI in New Jersey, particularly third offenses. For first offenders, the only difference between minimums and maximums is up to an extra $200 in fines, maybe an extra five months of interlock, and an extra four or five months of revocation if there is a high BAC.
In the case of second offenders, the difference is an extra year of revocation and two years of interlock, which also applies to third offenses. Judges in New Jersey don’t like to put people in jail, generally speaking. So, jail is not that much of a concern here. Of the thousands of first offenders I have represented in my career, I recall only two who went to jail. In one case, there was a dead body; in the other, a severe brain injury to the other driver.
You cannot fear repercussions from other parties. You have to be diplomatic, of course, but you have to do your job. One of the nice things about DWI practice from a criminal defense attorney’s perspective is the downside risks associated with losing at trial are so well-defined and generally pretty minimal that we try more DWI cases. Any attorney worth their salt in New Jersey who does DWI will try more cases than they will criminal cases because there is just not that much downside risk associated with a trial versus a guilty plea.
Will I Just Be Assumed Guilty For A Second DWI Or Subsequent DWI Charge?
No one is ever assumed guilty, but a prior conviction will factor into a prosecutor’s assessment of how hard they will push a case. 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. The state still has to prove each case beyond a reasonable doubt on its merits. Of course, if you are in New Jersey, that task is probably more manageable because they are all bench trials here. I took one case of a third offender up to the U.S. Supreme Court to get a jury trial because the penalties are very significant, including that six-month jail term. But unfortunately, the New Jersey Supreme Court split on the question; we still lost; and the U.S. Supreme Court declined to hear the case.
So, these days and for the foreseeable future, unless there is an increase in DWI penalties or a reclassification of a DWI as a crime, we are going to have all bench trials for DWI cases. It depends very much on the personality of your jury, which is one individual we call the municipal court judge. That’s the guy or gal with the black dress in front of that big desk in front of the courtroom.
There is a political aspect present. In New Jersey, local mayors appoint municipal court judges. In that sense, there is a great deal of patronage. Municipal court judges get a three-year term, and they get 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 not to get reappointed is to have people complain about you.
However, there is pushback from a state agency called the Administrative Offices of the Courts [“AOC”] and the Judicial Branch. New Jersey is unique because our state constitution gives the judicial branch much more power than any other judicial branch in any other state. The Supreme Court has the authority to make rules of procedure that supersede any legislative rules, but the legislature maintains pre-eminence when it comes to substantive law. That being said, our Supreme Court is trying to a-de-politicize the municipal courts. There is tension between the AOC and municipalities.
Our legislature is also starting to get the message because of money. There is now a great deal of legislative action in New Jersey to encourage municipalities to join together and have mutual courts. The exciting thing about that is if you get a joint court, the Governor is the one who appoints the judge, not the local municipality. So, it shifts the politics away from the local power centers. Some towns favor joint courts because it saves them money. On the other hand, the people running many municipalities want to maintain their local political power and patronage and fight to keep their individual court.
We have one Superior Court, but they are divided up into 15 vicinages over 21 counties, and it’s that battle between patronage and efficiency that 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. 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, to cross every T and dot every I, and to remind the judge constantly, even to the point of being threatened with contempt, that they have a specific job to do. I’ve been found in contempt six times, appealed every one of them, and was vindicated on appeal every time.
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