NJ DWI 2, 3 or 4th Arrest

“What happens on second, third, or even fourth offense DWI charges in New Jersey?”

A conviction for driving under the influence of alcohol or drugs is a serious offense, even for a first-time offender. The penalties can cause long-term financial and personal losses. However, the New Jersey legislature and sentencing judges understand people make mistakes, so while a DUI is a traffic violation with quasi-criminal consequences and a driver convicted of a DWI can go to jail, a first-time offense without aggravating factors is less likely to result in incarceration and in general, these offenses carry lesser penalties than subsequent convictions for drunk or drugged driving. However, multiple DUI’s are another matter. Penalties get steeper for each prior conviction.

Repeat DWI Charges Carry Steeper Penalties in NJ

In New Jersey, your driving history appears on a driver history abstract, which has all of your traffic violations, accidents, points, suspensions, and other infractions. The Motor Vehicle Commission (MVC) keeps a database of motorist state records with their history of traffic violations accessible in any state. Thus, the MVC maintains the driver history abstract, including the arrests and DUI convictions, that a judge and prosecutor may access to verify prior DUI convictions.

A record of a defendant’s DUI convictions weighs heavily in sentencing. In New Jersey, a first offense has a standard punishment for those registering a blood alcohol content (BAC) of between .08% and .10%, including fines, driving with an ignition interlock device (IID) for three months, two days in an intoxicated driver resource center (IDRC), a possible jail term of 30 days, and a three-year insurance surcharge of $1,000.00 per year. Higher BAC levels require more time with an IID.

Now, a second or third DUI has significantly more severe punishment. Second DUI convictions can result in increased fines, up to 90 days in jail, one to two-year license suspension, 30 days of community service, and two to four years with an IID after the license suspension expires. For three or more convictions, a driver faces six months in jail, an eight-year license suspension, 30 days of community service, a three-year insurance surcharge of $1,500.00 per year, and two to four years with an IID after the license suspension period expires.

How to Fight a Conviction for Multiple DUIs in New Jersey

With such strict penalties, an individual with a multiple DWI case needs a strong defense. Getting representation from an extraordinarily experienced DUI defense attorney is crucial for a second, third, fourth, or subsequent DUI. The best way to avoid enhanced penalties is to defeat the conviction. Even if that is not possible, there are defenses to a subsequent DUI that an attorney can argue for eliminating a prior DUI for sentencing purposes. Some effective defenses to repeat DWI charges are explained in detailed below.

Time between Convictions

First and foremost, an individual without a DUI conviction after ten years can have a lighter sentence based on their driving record, meaning the DUI older than ten years will not factor into their sentence for a new DWI. Legally, the DUI that occurred ten years before a new DUI conviction does not count as a prior DUI for sentencing purposes, even though the DUI still appears on the driver’s abstract. This is known as a ten-year step down and it can be significantly beneficial if your DWI lawyer is familiar with using this to argue for a lighter sentence in your case.

DWI’s vs. Past Refusals

DUI arrests remain permanently on a driver’s record and cannot be removed or expunged. And yet, the driving abstract is not incontestable proof that a prior DWI qualifies as a prior for sentencing purposes. For example, a refusal to submit to a breathalyzer test conviction may not necessarily qualify as a prior if you get another drunk driving charge in the future. Essentially, a defendant is not a second-time offender when the prior is a refusal conviction. Under New Jersey law, refusing to take a chemical test is an offense on a driver’s record. But when a subsequent DUI conviction arises, a judge may not count the prior refusal to sentence the defendant as a multiple offender if they get a new DWI that is not a refusal.

And yet, the opposite is not considered a valid defense. A prior DUI or DWI counts as a prior to a subsequent refusal conviction for sentencing. In State vs. DiSomma, the municipal court ruled that a prior refusal was not a previous conviction for sentencing in a subsequent DUI conviction. Both the state and defendant appealed to the Superior Court, Criminal Part, Law Division, which reversed the municipal court ruling. The Appellate Division reviewed the superior court ruling and reversed it, reinstating the municipal court sentence. The superior court’s decision that a refusal conviction is a prior for sentencing the defendant as a second-time offender was an error.

The defendant had a 1986 conviction for refusing to take a breathalyzer test, and six years later, had a conviction for a DWI. The municipal court did not sentence the defendant as a second-time offender, but the Law Division ruled that the defendant’s sentence should be a second offense. However, mandatory jail time for a second offense should not apply. The Law Division reasoned that since the refusal conviction resulted from a preponderance of the evidence burden of proof, like a civil case, it was unconstitutional to incarcerate the defendant.

The appellate court noted that the Implied Consent Law, which is the basis for a refusal conviction, does not punish the offender so much as protect the public from an impaired driver by getting them off the road. The burden of proof is akin to a civil case, whereas the DWI statute is quasi-criminal with a beyond-a-reasonable doubt burden of proof. The court further clarified that though the refusal and DWI are often codified consecutively, they are not interchangeable violations. The refusal statute does not include an incarceration penalty. Thus, enhanced penalties under the DUI statute do not include or encompass the refusal statute. They are distinct statutes.

Convictions for Different Offenses in Other States

Another example is a DUI or DWI conviction from another state. The prior conviction does not count as a prior for sentencing when the other state’s DUI laws are not the same as New Jersey’s. When out-of-state DUI laws differ from New Jersey’s, an accused’s New Jersey DUI should be a first-time offense for sentencing if there are no other prior convictions. In a 2003 case, N.J. Div. of Motor Vehicles vs. Ripley, the defendant appealed a New Jersey Division of Motor Vehicle (DMV) decision to suspend his license for two years after the state of Utah suspended his license for reckless driving involving alcohol. New Jersey abides by the Interstate Driver License Compact, which respects and shares the driver’s license suspensions of all states signing on to the Compact.

According to the Compact, New Jersey treats the out-of-state license suspension as if it had occurred in New Jersey. Nevertheless, Ripley appealed the DMV decision, contending that the DMV’s treating the Utah suspension due to reckless driving with alcohol to New Jersey’s DWI statute is an error. In Utah, the defendant pled guilty to “alcohol-related reckless driving,” which was a lesser offense than a DUI. His blood alcohol content registered .089%. Before entering his plea, New Jersey notified the defendant of its intention to suspend his license for two years due to the Utah conviction. Over ten years before the Utah conviction, the defendant had two other New Jersey license suspensions for driving under the influence. The DMV treated the Utah conviction as a second offense since the other two occurred ten years after the two other convictions.

Ripley appealed the DMV decision, and an Administrative Law Judge affirmed the DMV decision. The appeals court noted that N.J.S.A. 39:4-50 states that a DUI occurs when a vehicle driver is under the influence of intoxicating liquor or has a blood alcohol concentration of 0.10% or higher. The court determined that Utah’s downgraded conviction for alcohol-related reckless driving is not substantially like New Jersey’s DWI statute but more like New Jersey’s reckless driving statute, driving without regard to the safety of others.

The lesser offense of reckless driving in Utah does not require a minimum blood alcohol concentration as New Jersey’s DWI statute does. In other words, any amount of alcohol constitutes reckless driving in Utah but not in New Jersey under the DWI statute, where impaired driving ability is critical. The Utah conviction does not include a determination that Ripley was impaired. Thus, the statutes are not substantially alike to justify treating the Utah conviction like a New Jersey conviction. Besides, the DMV director jumped the gun by suspending Ripley’s license while charges were pending in Utah.

In Ripley, the court declined to treat the defendant as a second-time offender based on a prior conviction on the defendant’s record from another state. The superior court on appeal noted that when the Utah conduct leading to a suspension would be a DUI in New Jersey or the Utah statute is similar enough to New Jersey’s DUI statute, then the DMV may suspend the defendant’s license. The superior judge on appeal determined neither of those two reasons existed and thus, reversed the DMV decision.

Facing Multiple DWI or DUI Charges in NJ? Contact Us Now

With the likelihood of jail time and more severe ramifications for multiple DWI/DUI offenses, you should contact a talented New Jersey DUI defense attorney when you face repeated DUI charges. Fortunately, all of these New Jersey DWI Penalties can potentially be avoided if you’re ready to fight your case. The Tormey Law firm is a team of New Jersey DWI attorneys with highly trained DUI defense lawyers on staff, fighting on your behalf. We have handled thousands of DWI cases, and our advanced DWI defense strategies have allowed us to win many of them. We have created our own advanced DWI defense system that we use to beat these charges, and you can find that series by clicking here.

Contact us anytime at (201)-556-1570 for a free consultation and explore your options for beating multiple driving while intoxicated, under the influence, or refusal offenses in NJ.


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Learn More About How to Fight Your Charges

If you've been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.

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