Sentence and Appeal

DWI Sentencing – The Ten Year Step-Down Rule

1. What is New Jersey’s 10 year-step down rule?

In New Jersey if there is more than ten years between convictions, then the Municipal Court will apply the “step-down” provision when issuing the penalties. The “step-down” provision as described in N.J.S.A. 39:4-50(a)(3) provides:

A person who has been convicted of a previous violation of this section need not be charged as a second or a subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or a subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

Thus, if a second DWI offense occurs more than 10 years after the first DWI offense, then the defendant will only be sentenced for a first time DWI. Moreover, if a third time DWI offense is committed more than 10 years after the second, then the defendant will be only sentenced for a second time DWI offense. The step down provisions were designed to lessen the harshness of New Jersey DWI laws and the long driver license suspensions.

2. Could you explain how the step-down provisions work in plain English?

The step-down provisions are esoteric and can be very hard to understand. In simpler terms, below is an example as to how these laws work. If Danny Drunk is charged with his first drunk driving offense in New Jersey on May 1, 2000, and if he is later convicted, then he will be treated as a first offender and lose his driver’s license for either for 3 or 7 months depending on what tier his DWI conviction is for. Nine years later, on May 1, 2009, if Danny Drunk is busted again for DWI, when he is sentenced he will be treated as a second time DWI offender. Thus, he will be sentenced by the Municipal Court to a two-year driver’s license suspension.

Meanwhile, if Danny Drunk was busted on May 2, 2011 for DWI, instead of May 1, 2009, then he would have been treated as a first time DWI offender under the 10-year step-down rule. Moreover, if Danny Drunk had been busted for DWI in 2000, 2019, and then not until May 2, 2020, then Danny Drunk would be sentenced as a second offender rather than as a third. In summary, the primary factor in DWI sentencing is whether it is the defendant’s first offense, second offense, third offense or subsequent. The practice of DWI law has morphed from trying to beat the case, to instead mitigating the DWI sentence as best as possible.

3. Are there any limitations on using the 10-year step down rule?

The ten year-step down rule is very tricky. I strongly recommend that any person charged with a DWI offense must retain a lawyer who clearly understands all of the nuances of DWI sentencing. An experienced lawyer can save a DWI defendant many months of jail time, and many years of driver’s license suspension(s) if he understands the 10-year step down rule. One limitation is that most Municipal Courts judges will not give a defendant the benefit of multiple step down treatments. In some cases, the DWI defendant will have a record of decades of DWI convictions and refusals. It can be very tricky to decipher how to sentence a DWI defendant with multiple DWI convictions and refusals. Moreover, this process can be even more challenging if there are Laurick issues.

Most Municipal Courts will not give a DWI defendant the benefit of multiple step-downs. Some Municipal Courts will provide a DWI defendant the benefit of multiple step-downs to enable him to avoid jail time. However, the same Municipal Court will not provide the step-down rule to enable the DWI defendant to avoid the ten year (10) driver’s license suspension. The Municipal Court judges want repeat DWI drivers off the road. These judges are of the mind set that they can live with a multiple DWI offenders staying out of jail, but they want him off of the road. If a multiple DWI offender has a catastrophe, and if there is a major accident with fatalities, then these events can really make a Municipal Court judge look really bad. It is not uncommon for the local papers to try to make Municipal Court judges look real bad by labeling him as soft on DWI cases. I can’t name specific examples for obvious purposes. However, this is a cold hard reality of how the DWI process works. If a multiple DWI offender kills someone on the road then his DWI record will be carefully scrutinized. If a Municipal Court judge had any part of keeping a repeat DWI driver on the road, and if there are fatalities, then this can be a career killer for the judge.

5. What is the seminal case on the 10-year step down rule?

A very important case is State v. Burroughs, 349 N.J. Super 225 (2002). Here, the Appellate Division limited the scope of the ten-year step down rule. The Burroughs case provides in pertinent part:

N.J.S.A. 39:4-50(a)(3) accords sentencing leniency to a driver who is a second drunk driving offender, where there is a hiatus of ten or more years between the first and second offenses, and to a driver who is a third drunk driving offender where there is a hiatus of ten or more years between the second and third offenses. But once having been granted such leniency, the defendant has no vested right to continued “step-down” status where he commits a subsequent drunk driving offense. The earlier offense is not “forgiven.” Having been granted leniency by virtue of the infraction-free lapse of time between the two earlier violations the offender has received his reward for good conduct and is entitled to no further consideration.

Here in the Burroughs case, the defendant was first convicted of DWI in 1982 and given first offender penalties. His next DWI conviction occurred in 1998. Due to a passage of time in excess of 10 years between the dates of offense, the defendant was entitled to be sentenced once again as a first offender in 1998. However, when the defendant was arrested for a third time in the year of 200, the Appellate held that the defendant must be sentenced as a third offender. Although the defendant had been treated as a first offender on his 1998 conviction, he should have had no reasonable expectation that any subsequent violation would be treated as second offense. His prior offense had not been forgiven due to the passage of time. In order for a defendant to receive any type of reduction in sentence, the third offense must occur ten years after the second offense. Had this been the case, the defendant would have been treated as a second offender.