New Jersey DWI Attorney John Menzel


There is mandatory jail for both second and third offenders. Second offenders face a mandatory jail term of between two and 90 days, although a judge may commute a 2-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.

For first offenders, the judge has discretion to impose a jail term of up to 30 days, but this is rarely imposed. 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. Jail is not much of a concern for first offenders.

Aside from jail, the differences between minimum and maximum DWI penalties are well defined:

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 and administrative surcharges and fees totaling between $3,989 and $5,639. Those convicted also face significant automobile insurance premium increases–sometimes fourfold.  Also, the record of conviction remains on the driver’s record forever; it cannot be expunged.

For first offenders with no breath or blood alcohol content [“BAC”] result or with a result less than .10 percent, with fines ranging from $250 to $500, the difference is $250. All other consequences are the same.

For first offenders with a BAC of .10 or higher but less than .15, with fines ranging from $300 to $500, the difference in fines is $200. An Alcohol Ignition Interlock Device [“AIID”] restriction is mandatory on all cases except first offense drugged driving cases. 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, fines range from $300 to $500, so the difference in fines is $200. The law requires a driving privilege forfeiture of four to six months followed by an AIID restriction between nine and 15 months.

For second offenders, fines range between $500 and $1,000, A mandatory driving privilege forfeiture ranges between one and two years followed by an AIID restriction of two to four years. All second offenders must do 30 days community service as well.

For third offenders, other than the difference between the two- to four-year AIID restriction following an eight-year driving privilege forfeiture, there is no difference between minimum and maximum penalties.

One of the interesting things about DWI practice from a criminal defense attorney’s perspective is that the downside risks associated with losing at trial are so well-defined and generally pretty minimal that attorneys are more willing to take DWI cases to trial. Any attorney worth their salt in New Jersey will try more DWI cases than criminal cases because there is just not that much downside risk associated with a guilty finding after trial versus a guilty plea. The existence of other charges may alter this analysis, but 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 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 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 a DWI as a crime, we are going to have all bench trials for DWI cases.

Outcomes depend 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 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. The 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. 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, 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.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 218-9090

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