If you have been convicted of DWI anywhere, you may be facing enhanced penalties for loss of license, fines, and incarceration.
If you have a prior conviction or convictions from another State, those "priors" may be counted against you for sentencing purposes in New Jersey, as long as the conviction is "of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact" and the prior conviction "shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%." This is based on the New Jersey DWI statute, http://www.dwi-nj.com/parts/dwilaw.html . Depending on the circumstances of your out of state prior convictions, there may be arguments to avoid enhanced penalties in New Jersey if you are convicted on the current charge.
For subsequent offenders, "A person who has been convicted of a previous violation of this section need not be charged as a second or 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 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."
Confusion occurs with older multiple convictions. A case called State v. Burroughs, 349 N.J.Super. 225 (App. Div. 2002) is the current law on this sentencing issue. The Court in Burroughs held that although more than ten years elapsed between Burroughs first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses, he must now be treated as a third offender. Burroughs had convictions in 1982, 1998 and then in 2000.
The Court stated: "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." Id. at 227.
A fourth or greater conviction will always be treated as a third conviction for sentencing purposes, regardless of dates of conviction. For example, convictions from 1985, 1986 and 1990, and now a charge in 2006 would result in potential 4th offender status, with a pending penalty of 10 years loss of New Jersey driving privileges, fines, surcharges, and 180 days in county jail, 90 of which are mandatory in jail, and credit for up to 90 days in an in-patient alcohol or drug rehabilitation facility.
As part of any DWI defense, prior convictions should be reviewed to see if any of the prior cases can be reopened and challenged to determine if the convictions can be overturned. If they can, a third offense may then be treated as a second offense, or a second offense may be treated as a first offense. This process is called Post Conviction Relief.
None of these sentencing scenarios will occur unless or until you are convicted of the current charge.
Please contact me to discuss your questions regarding this sentencing issue.
Evan M. Levow, Esq.
Practice Limited to DWI Defense
www.dwi-nj.com
856-889-5181 cell
1-877-735-2288 office
856-429-7726 fax
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