New Jersey’s DWI “Step-Down” Provisions for a Fourth or Subsequent Offense

Steps DownNew Jersey law regarding driving while intoxicated (DWI) imposes progressively harsher penalties for multiple convictions. A defendant might not face heightened penalties, however, through “step-down” provisions in New Jersey statutes and caselaw. If enough time passes between convictions, a second offense might be treated as a first offense for sentencing purposes. A step-down might also apply in other situations, such as if a prior conviction involved a guilty plea without representation by an attorney. Convictions that have been modified through the post-conviction relief (PCR) process may also be subject to a step-down. Courts must weigh a wide range of factors in determining how to sentence a second, third, or subsequent conviction. The Appellate Division took on several of these factors in a recent decision, State v. Terpstra.

The New Jersey DWI statute imposes increasingly harsh sentences for second DWI offenses and third or subsequent offenses. The statute directs courts to treat a second conviction as a first conviction, for the purposes of sentencing, if the first offense occurred over a decade before the second. Likewise, if a third offense occurs more than 10 years after the second, the court shall sentence it as a second offense. The relevant date is when the offenses occurred, rather than the convictions.

Representation by counsel in prior DWI cases may also affect whether the step-down provisions apply. In 1990, the New Jersey Supreme Court issued an important ruling, State v. Laurick. The court held that courts may not impose sentencing enhancements if a prior conviction involved a non-counseled guilty plea. In other words, a second DWI conviction must be treated as a first at sentencing if the defendant pleaded guilty in the first case without a lawyer. A third offense would be sentenced as a second.

Prosecutors charged the defendant in Terpstra with DWI in January 2015. He had four prior convictions, from 1981, 1982, 1988, and 1995. A municipal judge convicted him of DWI after a trial. Since more than 10 years had passed since the most recent conviction, the municipal court treated the case as a fourth conviction. During the trial de novo before the Law Division, the defendant argued that none of his prior convictions should count toward sentencing enhancements, since he had never been “issued appropriate warnings prior to pleading guilty” in those cases. He cited Laurick in support of this argument.

The Law Division allowed him to file a PCR petition in municipal court, challenging the 1995 conviction based on Laurick. The municipal court granted the petition, finding that the 1995 conviction could not be considered for sentencing enhancements because he had not been “advised of enhanced future punishment for subsequent DWI convictions.” The Law Division subsequently sentenced the most recent case as a second offense, also applying a step-down to the 1988 conviction. The state appealed.

The Appellate Division reversed the Law Division’s ruling and remanded to the municipal court for resentencing. It rejected the Law Division’s interpretation of Laurick, finding that it only applied to wholly non-counseled pleas, rather than deficiencies in legal advice. Even with a step-down of the 1988 conviction, the court held, the current case would still count as a third or subsequent offense.

DWI attorney Evan Levow has defended clients in New Jersey against the state’s charges for more than 20 years. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to discuss your case with a skilled and experienced advocate.

More Blog Posts:

New Jersey Appellate Division Addresses DWI Step-Down Provisions in Refusal Case, New Jersey DWI Attorney Blog, July 26, 2017

New Jersey Supreme Court Rules that “Step-Down” Provision in State’s DWI Law Is Not Limited to One Use, New Jersey DWI Attorney Blog, January 10, 2015

New Jersey Refusal / DWI Sentencing Issues: Prior Refusal Conviction Does Not Enhance a Later DWI Conviction — Yet, New Jersey DWI Attorney Blog, January 26, 2011

Photo credit: Upcomingphotographerscorner (Own work) [CC BY-SA 3.0], via Wikimedia Commons.