Sentence and Appeal

Preparing for a DWI Sentencing

1. How do I prepare for a DWI sentencing in Municipal Court?

The practice of DWI law has essentially “morphed” from trying to beat the case, to instead getting the most lenient sentence possible for the defendant. Most of the sentencing in a DWI case is mandatory, thus you can argue until you are “blue in the face,” and you will receive the same sentence and period of driver’s license suspension. Even if you are in line to receive a Nobel Peace Prize if you get convicted for a DWI, then you will lose your driver’s license. The critical issue in the majority of the DWI cases is how long you will lose your driver’s license.

It is very important for a DWI defendant to cite some strong mitigating factors and explain them to the judge. The most important mitigating factor is that the DWI defendant recognizes that he has a problem, and he is doing something about it. I always recommend that a DWI defendant obtain drug and/or alcohol counseling and also to attend AA or NA. The defendant should obtain documented proof of getting counseling and attending AA or NA. If you present this evidence to the court then most judges will give the defendant the minimum term of suspension, lower the fines, and impose less jail time and community service. You have to prove to the court that you are “on board” with New Jersey’s goal to get rid of drunk driving. You have to know the “right lingo” when you go before the court for your DWI “judgment day.” You can’t simply go before the court and act like a “stoner” and expect to obtain great results. You have to express to the court that you understand that you have made mistakes, and that you are going to do anything and everything to try to turn your life around.

2. What are the aggravating factors in a DWI case?

The Municipal Courts weigh the aggravating versus the mitigating factors for each individual DWI case at the sentencing. The aggravating factors are as follows:

a. Was there an accident or injury. The occurrence of an accident is certainly an aggravating factor.

b. What was the defendant’s BAC level. The higher the BAC, then the more likely the sentencing judge will consider it to be an aggravating factor.

c. Was the defendant driving in a reckless manner. High speeds, weaving on the highway, dangerous maneuvers and sudden stops in traffic are just a few of the driving antics that will be considered by the court to be an aggravating factor.

d. Was the defendant cooperative with the police? Although a defendant is under no duty to admit wrongful conduct to the police or anyone else, fighting, threatening, abusive or combative behavior that either endangers or hinders the police is universally considered to be an aggravating factor at sentencing. Frequently, lying to the police about the drunk driving incident, leaving the scene or an accident or refusing to take a breath test are each also considered to be an aggravating factor.

e. Does the defendant have prior DWI convictions or alcohol related offenses.

f. Was there a videotape of the defendant take on the highway or at the police station. The videotape of a DWI defendant is very powerful evidence.

3. What are some of the mitigating factors in a DWI case?

a. If the defendant has issued an apology to the victim and if he offered to compensate him for any damages.

b. The defendant enrolls into a residential alcohol treatment program.

c. The defendant had enrolled into a follow-up aftercare program for alcoholism on an outpatient basis following the completion of the residential program.

4. What is the most important mitigating factor in any DWI case?

The most important factor in any DWI case is when the defendant enrolls into an alcohol rehabilitation program. It is very important for a repeat DWI offender, or a first time DWI offender with a very high BAC to enroll into an alcohol rehabilitation program. In this scenario, the defendant should immediately enter and successfully complete an alcohol rehabilitation program. This can be on an in -patient basis, if the defendant has adequate medical insurance or the financial resources to pay for it. In many cases, all a defendant can afford is an out patient program. Here, a DWI defendant should keep detailed records of any attendance in any outpatient program.

It is also important for a DWI defendant to start attending AA and/or NA classes. The defendant should keep any attendance records. These attendance records can be given to the judge and cited as a mitigating factor.