Sentence and Appeal

Summary of DWI Sentencing Law

ROUTINE DRUNK DRIVING CASES – FIRST OFFENSE

A defendant who enters a plea of guilty or who is found guilty for a first time DWI is subject to a range of punishments. He is required to pay a fine in the range of $25o to $400. In addition to whatever the fines that are imposed, there are  also several hundred dollars of mandatory related costs and assessments. The defendant must pay a $100 surcharge to the Drunk Driving Enforcement Fund, a $50 assessment to the Victims of Crime Compensation Board (VCCB), a $100 surcharge for DUI enforcement,   and a $75 assessment to the Safe Neighborhood Services Fund. Finally, the court may impose $33 in court costs.

The defendant will also lose his driver’s license for a period of seven months to one year. The court will usually impose a seven-month suspension if the BAC readings are low or moderate. In my experience if the readings are 0.15% BAC or higher, then the court may impose a longer suspension. If there is an accident then the court will almost always impose a longer sentence.

The court can also impose a jail sentence on the driver for up to thirty days. However, most New Jersey Municipal Court judges never impose a jail term for a first time DWI. However, sometimes if there is a personal injury involved, or if the driver gave the police officer(s) a real hard time, then the court may impose a jail term.

The judge may also order that a first offender to install an ignition device on their car pursuant to N.J.S.A. 39:4-50.16.  The court must impose an interlock device on a first time DWI offender if the BAC level is 0.15%.  The defendant must install an interlock devise for a period of six months to year. In those DWI cases wherein the BAC level is less than 0.15% then the sentencing court has its own discretion, and it may order the use of an interlock device. When the court exercises its discretion in this aspect of sentencing, then the interlock device must remain on the defendant’s motor vehicle for a period of six months to one year.

Interlock devices are extremely expensive and it costs approximately about $2,000 to install one. Moreover, there is a fee in the approximate amount of  $100 per month fee to have these devices monitored. In summary these devices make dealing with a DWI offense even more expensive. Most municipal court judges won’t require an ignition interlock device on a first time charge, unless there is a high reading, a young driver is charged, or if there is an accident.

The court is also required to sentence the defendant to detention at a program of alcohol education a facility run by the Department of Health known as the Intoxicated Driver Resource Center (IDRC). The defendant must attend the IDRC for two consecutive days, and spend at least six hours there each day. The defendant can be required to spend the entire 48-hour period at the IDRC. As a condition of the sentence, the defendant may also be required to complete an aftercare rehabilitation program that is recommended by the IDRC. The defendant must comply with all of the conditions imposed by the IDRC to get their driver’s license back.

Finally, after all of these requirements are satisfied, then the Motor Vehicle Commission will send you a notice that advises the defendant that there is a surcharge of $1,000 per year for three years imposed on the defendant. Most drivers make a payment plan with MVC and pay $83 a month. If the driver does not pay the MVC then their license will be automatically suspended. Many drivers have been stopped and given a driving while suspended ticket because they have not paid their surcharges from a DWI charge. Surcharges can only be wiped out in a chapter 13 bankruptcy, and not in a chapter 7 bankruptcy.

A DWI defendant should also be advised that his car insurance rates will almost always double after they are convicted of DWI.

 

ROUTINE DRUNK DRIVING CASES – SECOND OFFENSE

A second DWI offense requires that court to impose a sentence that is much more severe than a first time DWI offender. If there is a ten-year period between the first DWI and the second DWI, then the court will only sentence the defendant as a first time offender.

A second DWI offense subjects the defendant to a fine of $500 to $1,000. The defendant must also pay $50 VCCB, $75 SNF,  $100 for a DUI Enforcement fine, and a DUI surcharge of $100. Finally, there are $33 in court costs.

For a second DWI offense, the Municipal Court must suspend a defendant’s driver’s license for two years.  A two day jail is mandatory for a second DWI offense DWI. The defendant must serve at least 48 consecutive hours in jail, and the term of jail may be extended up to 90 days at the discretion of the court. The minimum two day jail sentence cannot be suspended by the court, but must actually be served by the defendant. However, the two-day sentence does not have to be served in jail. Instead, the defendant may serve his jail sentence in a county workhouse, in an impatient rehab facility, or the IDRC. Therefore, most of the time judges usually impose a two-day jail term, but permit the defendant to serve the two days in the IDRC.

The defendant is also required to perform 30 days of community service for a second DWI. One day of community service is deemed to be six hours long, so the defendant is actually committed to perform 180 hours of community service. Many times the court will suspend a jail term in order to give the defendant some incentive to finish the IDRC, and the community service.

A second DWI offense will subject a defendant to the same collateral consequences of a first DWI offense. The defendant will have to pay $1,000 per year of surcharges for three years. Moreover, his cost of any auto insurance coverage will skyrocket.

Finally, a second offender will be required to install an ignition interlock device on their motor vehicle. The court has the discretion to require the defendant to install a ignition interlock device for a period of one to three years for a second time DWI offense.

 

ROUTINE DRUNK DRIVING CASES – THIRD OR SUBSEQUENT OFFENSE

The punishment for a third DWI offense is very stiff. It must also be stressed that there is an emerging trend that many Municipal Court judges are not following the “ten year” rule when it comes to a third time DWI offense. This means that if there is a ten-year gap between the DWI offenses, then the court will still treat the DWI charge as a third time DWI offense, and it will not treat it as a second time DWI charge. In simpler terms, there is a trend not to give any sentencing breaks whatsoever to any person charged with a third time DWI charge.

A third time DWI offenders must also pay a $1,000 fine. In addition a defendant must also by $30 in court costs, a $100 Drunk Driving Enforcement Surcharge, a $100 DUI Enforcement fee,  $50 VCCB assessment, and a $75 Safe Neighborhood Services Fund Assessment.

The defendant will also lose his or her driving privileges for 10 years upon conviction for a third time DWI. A defendant must also serve 180 days in jail. However, in keeping with the legislative philosophy of rehabbing drunk driving defendants, a defendant with a crafty lawyer can significantly reduce the jail time. The sentencing court has the discretion to permit the defendant to perform community service instead of jail time for up to 90 days of the defendant’s sentence. The court also has the discretion to sentence the defendant to an impatient rehab program instead of jail.

A third violation will also subject the defendant to harsh collateral consequences. The defendant must pay $1,000 of surcharges for three years. However, if the third offense occurs within three years of the second offense, the surcharge is $1,500 a year for three years. The cost to get auto insurance will be similar to putting a down payment on home.

Finally, a third time DWI offender will have to install an ignition interlock device on their motor vehicle. Most judges will require that the interlock ignition device be installed for the max three years in a third time charge.

 

SCHOOL ZONE CASES

In 1999, the State of New Jersey enacted DWI laws to enhance a sentence for a driver convicted of DWI in a school zone. If a driver is stopped for a DWI within a 1,000 feet of the school zone, then the enhanced penalties provisions apply. These enhanced penalties are also known as the “Filomena’s law.” The amendments are intended to honor Filomena Coppola, a well-known and popular crossing guard who was struck and killed by a drunk driver while protecting two children at a school crossing in Nutley.

A defendant who is convicted of DWI within a school zone is subject to increased fines, license suspension, community service and jail.  The most important part of the school zone charge is that the sentence is doubled. A first time DWI in a school zone must lose their driver’s license for one year. A second time DWI in a school zone must lose their driver’s license for four years.

Two of the three sentencing enhancements for driving under the influence are strict liability in nature. It is not necessary that the prosecution prove that the defendant was in any way aware that he was driving within 1000 feet of school property, or within the school zone. Moreover, the statute does not even require that the children be present at the time of the violation within the school zone. The state expressly indicates that the school need not be in session at the time of the DWI violation. In essence, the legislature has created a 24 hour per day, seven day a week safety zone within 1,000 feet of the school zone. A defendant convicted of DWI will be subject to the enhanced school zone punishment even though he is stopped in the middle of the night, and there are no children around.

 

POSSIBLE LOOPHOLES TO BE SCHOOL ZONE CASE

A keen strategy to try to beat the school zone case is to make the State prove that the driver was actually in a school zone at the time of the arrest. The driver should make the State bring in the map maker to prove that the DWI arrest occurred in a school zone. All townships must have a certified map or a true copy of a map in order to prove that the violation occurred within 1,000 feet of a school zone.

Quite often the prosecutor overlooks this issue, and he just tries to convince the court that the arrest occurred in a school zone, without producing the mapmaker make to testify. Don’t stipulate to the arrest being in a school zone, make the prosecutor prove it. Quite often the prosecutor will be overwhelmed with their other cases, and they will not adequately prepare to prove this crucial element of the DWI school zone charge.

Another important tip is to require the prosecutor prove that the property in question was regularly and actually used for school purposes at the time of the offense. The defendant can also try to prove that the school property was not used for school purposes at the time of the offense.

 

SUMMARY OF THE SCHOOL ZONE CHARGE

The DWI school zone charge can really be a disaster for a driver. As explained above, basically the fines, the prison terms, and the length of suspension are all doubled for a school zone charge. Dishonest and unfair police officers will often tail a DWI driver and deliberately follow him until they know that they are in a school zone. If you get busted for a school zone charge then get yourself a lawyer who has at least ten years experience. Don’t mess around! These cases are hard to beat! However, if you pursue every possible defense, then it may be possible for you to convince the prosecutor to dismiss the school zone charge, and permit the driver to plead guilty to a straight DWI charge. This will enable the driver to avoid the enhanced penalties. Be prepared to spend some money to defend yourself against the evil and commonly known as the “zone” charge.

 

PLEA BARGAINING

In the world of DWI it is illegal to engage in plea barraging. This means that even if you get the “Johnny Cochran” of DWI lawyers, the prosecutor still must take your case to trial. The prosecutor may be permitted to drop a refusal charge if the driver pleads out to DWI. The parties can also engage in alternative dispositions. Sometimes the prosecutor’s case really has too many holes to go forward. Moreover, sometimes the police officer will arrest the driver and charge him with a DWI even though the BAC readings are way below the per se limit of .08%. In these cases, the prosecutor will at times permit a driver to plead out to reckless driving, with the condition that the driver lose their license for 60 days.

 

THE TEN YEAR STEP-DOWN RULE

This is a very tricky doctrine. Basically, in a nutshell if there is a ten year gap between DWI convictions, then the DWI driver is sentenced more leniently. N.J.S.A. 39:4-50(a)(3) provides a certain measure of relief to multiple offenders who go more than 10 years between offenses. If a second DWI offense occurs more than 10 years after a first offense, then the sentencing court is required to treat the second DWI conviction as a first offense for sentencing purposes. If a defendant commits a third DWI offense more than ten years after the second offense, then the  court is required to treat the third offense as a second offense for sentencing purposes. The relevant date for all of these sentencing decisions is the date of offense as opposed to the date of conviction.

 

CHANCES OF SUCCESS IN BEATING A DWI CHARGE

There is an alarming trend that has emerged in the Municipal Courts all throughout New Jersey. The trend is that it is getting harder and harder to beat a DWI charge. Many lawyers on the web sites advertise how successful they are in beating DWI’s. I would read these web sites with a “grain of salt.” In my experience beating DWI cases just keeps getting more and more difficult every year. The main factors to evaluate your chances of success to beat a DWI charge are the following;

  1. How high are the driver’s BAC readings.
  2. How complete and thorough are the police reports.
  3. What is the “culture” of the municipal court where the case is being tried.

Some Municipal Court judges are more open minded to your DWI defense then some more conservative judges are. Before a defendant spends thousands of dollars to defend his DWI charge, he really should investigate and appraise the track record of the Municipal Court judge where the case is being tried. The DWI laws are the uniform throughout the entire state. However, the most important aspect in any DWI case is how New Jersey DWI law and caselaw interpreted by the individual judge. Some judges tend to find almost all of the defendant’s guilty of a DWI charge even if there are many holes in the prosecutor’s case. This is cold hard reality of current Municipal Court practice.

Remember, a DWI defendant does not get a jury trial in his DWI case. Until a DWI defendant is able to get a jury trial to defend themselves against the DWI charges, I don’t expect the acquittal rates to increase. New Jersey is the only state that does not provide a driver with the right to a jury trial to defend against a DWI charge. However, New Jersey is probably the most lenient state for DWI laws when it comes to sentencing. In most other states if you are found guilty of DWI, then the driver often has to serve some hard time in jail and you will also have a criminal record.