Sentence and Appeal

Out-of-State DWI Convictions

An out- of -state conviction for a DWI of a substantially similar nature, will constitute as a prior DWI offense in New Jersey. It is however possible to exclude the out of state conviction by proof that the conviction was based solely upon a violation of a proscribed BAC of less than .08%.

There are two possible ramifications that an out of-state DWI or CDS conviction can have on a New Jersey resident driver. First, a New Jersey resident can expect the imposition of an administrative license suspension and costly surcharges from New Jersey Division of MVC once the out-of-state conviction has been reported. Second, if a New Jersey resident defendant is charged and convicted of a subsequent offense in New Jersey during the ten-year period following the out-of-state conviction, then this prior conviction will subject the defendant to enhanced penalties in New Jersey.

Administrative Sanctions

When a New Jersey resident is charged and convicted of a DWI offense in a state outside of New Jersey, then a record of the conviction usually be reported to the Director of the Division of Motor Commission. This is especially likely if the New Jersey resident presented his New Jersey driver’s license to the police in connection with the out-of state violation.

A report of these convictions will be made to the Division of Motor Vehicle Services according to the provisions of Interstate Driver’s License Compact. If the DWI conviction is reported to the New Jersey Division of Motor Vehicles, then the director will take administrative steps to suspend the driving privileges of the resident driver. The length of the suspension will be in accordance with the minimum license suspension periods available under N.J.S.A. 39:4-50, depending upon the driver’s history of prior offenses. New Jersey will typically impose a period of suspension which would be provided for under New Jersey law. In summary, New Jersey’s Division of Motor Vehicles will consider the nature of the DWI conviction in terms of what number of DWI offense it represents (ie. first offense, second offense or third offense). Thereafter, the MVC and impose that same period of suspension which would also be provided for under New Jersey law for the commensurate conviction.

A reported out-of state DWI conviction will also trigger the imposition of surcharges by the MVC. The surcharge will be at the rate of $1,000 per year for three years. For a third DWI offense, the surcharge is $1,500 per year for three years.


The law is now clear that a prior out-of-state conviction enhance a subsequent conviction, that occurs in New Jersey. According to N.J.S.A. 39:4-50(a)(3), a DWI in any of state that is similar to the NJ DWI law will constitute a prior conviction in New Jersey for sentencing purposes.

For the immediate future, a New Jersey defendant may be able to avoid the sentence enhancement consequences of an out-of-state DWI conviction under certain circumstances. The DWI defendant will have to prove that the out-of-state DWI conviction was based on a BAC level that was less than the levels of proof as used in New Jersey. Basically, the DWI driver must prove that if the out of state court used the same standard of proof as New Jersey did, then he would not have been convicted.

For example, New York has a DWI charge called Driving While Ability Impaired (DWAI). A defendant is convicted of a DWAI with a blood alcohol content of .05 to .07 percent. Considered a traffic infraction or a misdemeanor depending whether its a first or subsequent offense, a DWAI conviction can result in $300 to $1,500 in fines, 15 to 180 days in jail, and a license suspension for 90 days to one year. If this defendant was charged for this same offense in New Jersey then  he would not have been found guilty of a DWI because his BAC was not .08% or greater. Thus, a strong argument can be made that a New York DWAI conviction does not count as a prior DWI for sentencing enhancement purposes in New Jersey.