What Happens If I Am Still On Probation For A First DWI And Get Arrested For A Second DWI?

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New Jersey does not have probation for DWIs because it does not classify DWI as a crime or a criminal offense. However, there are two agencies that perform functions that resemble probation for DWI. One is an agency called the Intoxicated Driver Resource Center [“IDRC”]. The other involves the installer of the alcohol ignition interlock device [“AIID”], which is now a requirement for anyone convicted of DUI, except first offenders convicted of drugged driving.

IDRC conducts classes which those convicted of DWI are required to attend as part of their sentences–either two six-hour sessions on two consecutive days or one 48-hour session, depending on what the judge has ordered. If the test reading is .15 BAC or higher or if there is a history of prior alcohol or drug related convictions or if the IDRC assessment indicates a need, IDRC will generally require further education, evaluation, or treatment. The IDRC assessment uses what they call an “evaluation instrument”–multiple choice and short answer questions and one essay question. If you don’t follow IDRC recommendations, IDRC has authority to have the N.J. Motor Vehicle Commission [“MVC”] revoke your driving privilege.

The law requires second offenders to receive a two- to 90-day jail term, but absent some significant aggravating factor, judges will generally commute the jail term to the 48-hour IDRC. The law is unclear whether IDRC is required judicially as part of a third offense sentence. Indeed, there are arguments that a judge may not require IDRC attendance. But administrative regulations require third or subsequent offenders to complete a 12-hour IDRC program and meet any screening and referral services as a pre-requisite to restoration of driving privilege.

IDRC has authority, independent of the court or MVC, to require any attendee to engage in further education, evaluation, or treatment. If an attendee fails to follow the requirement, IDRC will refer the case back to municipal court, which can impose a jail sentence, send the person back to IDRC, or terminate IDRC requirements.

AIID installers monitor how people comply with AIID installation and maintenance requirements. They are also required to record the breath alcohol content registered by the device during the last month that the AIID is required. If a person blows a .08 or higher more than one time during that last month, the interlock installer reports that to municipal court, which then has the authority to extend the interlock period or impose other punishments.

This statute has only been in effect since December 1, 2019. It, like its predecessor, discriminates against those people who do not own a vehicle. This issue was recently before the New Jersey Supreme Court. I am represented an individual too poor to acquire and maintain a motor vehicle. The trial court revoked her driving privilege for two years and required her to have an AIID for two years thereafter. After four years went by, she sought credit against the AIID requirement. But the trial court denied that request, claiming that she should have made this request to MVC. The Supreme Court clarified that the courts should consider the issue of credit since the courts impose the sentence. Another unresolved issue is how out-of-state drivers address the AIID requirement. Keep watching for further case law developments.

Can I Get a Restricted License in New Jersey for a Second or Subsequent DWI?

In certain circumstances, there are periods of driving privilege revocation when a person cannot operate a motor vehicle for any purpose–a “hard” revocation. First offenders with a BAC below a .15 receive an indefinite revocation that will end (a) on installation of an AIID in whatever vehicle they principally operate and (b) obtaining from MVC a driver’s license with notice of the AIID restriction imprinted on the license. If the AIID is already installed before conviction, some municipal court judges will issue a temporary license for a fixed period of time during which a person can install the AIID and, for practical purposes, avoid any hard revocation.

When convicted as a second or subsequent offender, a person may not drive at all for a fixed period. For second offenders, that period is one to two years. For third or subsequent offenders, that period is eight years. Then, as a condition of driving privilege restoration, MVC would require proof that there is a vehicle available with the interlock already installed. MVC would then issue a limited license restricting the person to operating only that vehicle in which the AIID was installed for two to four years.

If a person does not have any vehicles registered or leased in their name, revocation will start immediately upon conviction. If a person has a vehicle registered in their name, the hard revocation may not begin until installation of the AIID, leading to further delay of the supervision described above. While it’s a grey area, I generally recommend that those facing conviction for a second or subsequent offense relinquish whatever vehicles they own, lease, or have registered in their name.

Is There a Way to Avoid Forfeiture of My Driving Privilege If I Get Convicted of DWI?

Effective February 19, 2024, the New Jersey Legislature put in place a way for those accused of DWI can avoid a driving privilege suspension. If charged with DWI, the accused can get an AIID installed in whatever vehicle they would principally operate and, within seven days thereafter, obtain a license with the AIID restriction imprinted on it. If there was no accident involving serious bodily injury and the driving privilege of the accused person was in good standing when charged and maintained in good standing until conviction, that person will get a one-day credit against the driving privilege revocation imposed on conviction for every two days the person had the AIID installed before conviction.

This change in the law includes other incentives to install the AIID before conviction. For example, fines amounting to between $250 and $1,000 are eliminated, but $390 in mandatory assessment would remain. Whether this is worthwhile must be weighed against the cost of maintaining an AIID which runs about $120 to $140 per month.

Because of how the statute is written, there are a few open questions concerning, among other things, how this new law would apply to drivers licensed outside of New Jersey, what would happen if the person with a pre-conviction AIID is caught operating a motor vehicle without an AIID while charges are pending, when the seven-day period in which to install the AIID begins, and whether the credit would apply if one is convicted of operating a motor vehicle while under the influence of drugs other than alcohol.

Installing an AIID before conviction is a hedge against the possibility or probability of a conviction. The hope is that the installation of the AIID before conviction was done for nothing by beating the DWI charge.

For more information on Probation for a DWI 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.