New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

Here is some important case law on sentencing New Jersey DWI offenders. In State v. Luthe, 383 N.J. Super 512 (2006), the Appellate Division held that the amendments to the sentencing provisions of N.J.S.A. 39:4-50(a)(3) effective January 20, 2004, make it clear that a third or subsequent DWI offender must be sentenced to 180 days in jail, subject to as much as 90 days credit for time spent in an IDRC-approved in-patient residential facility. Work release or credits for out-patient therapy are not permitted for these defendants.

Also, in State v. Burroughs, 349 N.J. Super 225 (2002), in order to receive the benefit of a step down in sentencing (being sentenced as a first rather than a second offender or a second offender rather than a third), the defendant must have a period of a full ten years between his second and third offenses. Furthermore, in determining the relevant date for calculating sentence enhancements based upon a prior drunk driving offense, the date of the prior offense controls as opposed to the date of the prior conviction. State v. Bischoff, 232 N.J. Super 515 (1989).

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A very important aspect in sentencing for DWI convictions is whether you are categorized as a first, second, or third offender. This categorization can significantly effect the penalties involved. One of the strategies for avoiding categorization as a second or third offender is to argue that your prior convictions were "uncounseled", meaning that the defendant was not represented by counsel in his prior DWI cases. This issue was discussed in the New Jersey Supreme Court case of State v. Hrycak, 184 N.J. 351 (2005). " A defendant is faced with a three-step undertaking in proving that a prior uncounseled DWI conviction should not serve to enhance the jail component of a sentence imposed on a subsequent DWI conviction. As a threshold matter, the defendant has the burden of proving in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case. He or she must then meet the two tiered test in Laurick (citation omitted). In that vein, if the defendant proves that notice of the right to counsel was not provided, the inquiry is then bifurcated into whether the defendant was indigent or not indigent. 'If the defendant was indigent, the defendant must prove that the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver.' On the other hand, if the defendant was not indigent at the time of the prior uncounseled conviction, the defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one's choosing and to prove that the absense of such counsel had an impact on the guilt or innocence of the accused or otherwise 'wrought a miscarriage of justice for the individual defendant.'"

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Here are some important cases governing multiple DWI offenses and categorization of offenders in New Jersey:

State v. Burroughs, 349 N.J. Super 225(2002)

The court held that the defendant was subject to third offender treatment, although more than ten years elapsed between his first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses.

State v. DiSomma, 262 N.J. Super 375(1993)

The court held that a conviction for refusal to take a breathalyzer test could not serve as a basis for imposing second offender status when sentencing defendant for later conviction for driving while intoxicated.

State v, Tekel, 281 N.J. Super 502(1995)

The court held that defendant can be sentenced as a second offender after refusing to take a breathalyzer test when they have a previous DWI conviction.

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