Articles Posted in Effect of Arrest or Conviction

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.

father and childDriving while intoxicated (DWI) can affect a person’s life in nearly countless ways. Many potential consequences are not contained in the DWI statute itself. A recent decision by the New Jersey Appellate Division, N.J. Div. of Child Protection and Permanency v. T.S., demonstrates how a DWI case, even when it doesn’t result in a conviction, can have far-reaching consequences—in this case, charges of child endangerment.

New Jersey defines DWI in simple terms. A person commits an offense when they drive while “under the influence” of drugs or alcohol, or when they drive with a blood alcohol content (BAC) of 0.08 percent or higher. The statute focuses solely on the act of driving and the fact of “influence” by drugs or alcohol. A person’s ability to drive safely, even after a few drinks, is therefore not a factor under New Jersey law. While public safety is one of the central purposes of the DWI statute, the state is not required to prove that a defendant actually posed a direct danger to anyone.

Other areas of law are also concerned with the danger posed by certain activities. New Jersey law defines child abuse or neglect, in part, as “unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.” In other words, behavior that poses a substantial risk of harm to a child could legally constitute child abuse or neglect, even if the child in question suffered no actual harm. This definition of child abuse or neglect applies to civil proceedings regarding child welfare, including the removal of a child from the home on a temporary or permanent basis. Unlike DWI proceedings, civil cases only require proof by a preponderance of evidence, rather than beyond a reasonable doubt.

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DiversionCourts in New Jersey encourage both prosecutors and defendants to explore alternatives to taking a case to trial. Most prosecutions in New Jersey do not go to trial, ending instead in a plea agreement, diversion, or dismissal. Defendants charged with criminal offenses may qualify for pretrial intervention (PTI), which allows them to “avoid ordinary prosecution by receiving early rehabilitative services or supervision.” Driving while intoxicated (DWI) is not a criminal offense under New Jersey law, meaning that PTI is not available for defendants charged with DWI in municipal court. The related offense of driving while license suspended (DWLS), however, can lead to criminal charges in certain situations. Information about PTI may therefore still be useful during a DWI case. A recent decision by the New Jersey Appellate Division, State v. Torres, reviews the criteria for PTI.

New Jersey law establishes PTI as a means of focusing on the “least burdensome form of prosecution possible” for qualifying defendants. Eligibility is generally limited to defendants with no prior convictions in New Jersey, nor in any other federal or state court. The statute does not define additional eligibility requirements, other than a presumption against eligibility for defendants charged with public corruption or domestic violence. Prosecutors may recommend a defendant for PTI based on various factors, including the severity of the alleged offense, the defendant’s age, and circumstances that suggest that ordinary prosecution would not be effective at deterring future illegal activity or serving justice.

The PTI statute can be found in Title 2C of the New Jersey Revised Statutes, also known as the New Jersey Code of Criminal Justice. The DWI statute, on the other hand, is found in Title 39, Motor Vehicles and Traffic Regulation. This title deals with motor vehicle offenses like speeding, reckless driving, and DWLS, in addition to DWI. Proceedings involving motor vehicle offenses are similar to criminal proceedings in most ways. Prosecutors are still required to prove guilt beyond a reasonable doubt, for example, but defendants charged with DWI are not entitled to a trial by jury. In certain situations, DWLS is covered by a criminal statute, such as when a person allegedly drives during a period of license suspension that resulted from a DWI conviction.

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the lawThe legal treatment of driving while intoxicated (DWI) varies from one state to another, with some states categorizing it as a criminal offense and others, including New Jersey, calling it a traffic or motor vehicle offense. Several recent media reports have questioned whether New Jersey’s DWI laws are “tough enough,” pointing to the risks allegedly posed by repeat offenders. The New Jersey Legislature has revised and amended the DWI statute many times, and several bills are currently pending that would increase some penalties and reduce others. A key question to consider when discussing the “toughness” of DWI laws is whether the purpose of these laws is to punish people who violate the law, prevent people from violating the law in the future, or some combination of the two. This particular dispute is at least as old as the legal system itself.

Every state defines DWI, in part, as driving with blood alcohol content (BAC) of 0.08 percent or higher. The differences between treating DWI as a criminal or traffic offense include the procedures courts must follow at trial, and the possible punishments resulting from a conviction. A DWI conviction in New Jersey, by itself, results in license suspension and a fine, as well as the possibility of jail time. A first-time offender with BAC of at least 0.15 percent must also install an ignition interlock device (IID) in their vehicle, both during and after the period of suspension. Second, third, and subsequent offenses also carry greater possible penalties, up to a maximum fine of $1,000, license suspension of ten years, and 180 days in jail.

In states where DWI is considered a criminal offense, penalties may be greater than in New Jersey, in terms of fine amount and length of jail sentence. The specific code section dealing with DWI in New Jersey, however, is not the only one involved in DWI enforcement. The New Jersey Motor Vehicle Code includes provisions penalizing drivers for refusing to submit to breath testing and for driving with a suspended license, as well as for circumstances like DWI with a minor passenger in the vehicle.
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Keyless IgnitionNew Jersey law imposes a wide variety of penalties for the traffic offense of driving while intoxicated (DWI). Some of these penalties, like fines and jail time, are primarily punitive. Other penalties have the additional goal of public safety. A license suspension after a DWI certainly counts as punishment, but proponents of license suspensions often cite the public safety benefit of keeping DWI offenders off the roads. A similar justification accompanies the New Jersey law requiring the use of an ignition interlock device (IID), which requires the driver to submit a breath sample and prevents a vehicle from starting if the sample shows a blood alcohol content (BAC) above a certain amount. The Centers for Disease Control and Prevention (CDC), a federal agency, recommends the expanded use of IIDs, based largely on its assessment of the benefit to public safety. A bill currently pending in the New Jersey Legislature would require the installation of an IID for all DWI convictions.

Under current New Jersey law, the penalty for a first-time DWI offense does not include mandatory IID installation if the defendant’s BAC was less than 0.15 percent. Municipal court judges still have discretionary authority to order IID use in such cases during the period of the driver’s license suspension, and for six to 12 months after the reinstatement of the license. For a first offense with a BAC of 0.15 percent or higher, IID installation is mandatory for a similar period of time. After a second or subsequent DWI offense, IID installation is mandatory during the suspension period and for one to three years afterwards.

A DWI defendant cannot drive any vehicle other than the one with the IID installed while they are subject to a court order requiring an IID. Failing to install an IID as ordered, or operating a vehicle equipped with an IID by having someone else blow into the device, can result in an additional one-year license suspension. Other IID-related offenses include blowing into someone else’s IID to allow them to start the vehicle, tampering with an IID, and knowingly lending or leasing a vehicle without an IID to someone subject to a court order requiring an IID. These are all disorderly person offenses, which can carry penalties of up to six months in jail and a maximum fine of $1,000.

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Roman dieNew Jersey law imposes increasingly harsh penalties for subsequent convictions of driving while intoxicated (DWI) and refusal to submit to breath testing. Penalties for both offenses may include fines, a driver’s license suspension, and the mandatory use of an ignition interlock device. A conviction for DWI may also involve jail time. State law includes “step-down” provisions, however, that lessen the severity of a sentence if a sufficient amount of time has passed since the most recent prior conviction. The New Jersey Appellate Division recently ruled on an appeal involving a defendant’s refusal conviction, which followed three DWI convictions. The court’s ruling in State v. Clapper considered whether the step-down provisions, which only mention second and third DWI offenses, apply to subsequent refusal offenses.

The New Jersey DWI statute imposes progressively harsher penalties for (1) a first DWI conviction involving a blood alcohol content (BAC) of at least 0.08 percent but less than 0.10 percent, (2) a first offense involving a BAC of 0.10 percent or higher, (3) a second offense, and (4) a third or subsequent offense. The refusal statute imposes increasing penalties for (1) first, (2) second, and (3) third or subsequent offenses. Prior DWI convictions may be used to enhance the sentence for a refusal conviction, according to the Appellate Division’s 2015 ruling in State v. Taylor, but prior refusal convictions may not be used to enhance a DWI conviction.

Under the step-down provisions, if a second DWI offense occurs more than 10 years after the first, the court must impose the sentence for a first offense. Likewise, if a third offense occurs more than 10 years after the second, the court must treat it as a second offense. This applies to both DWI and refusal convictions under the system described in Taylor. Notably, the step-down provisions do not mention subsequent convictions after a third one.

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walking manA conviction for driving while intoxicated (DWI) in New Jersey results in a mandatory driver’s license suspension. A defendant has the right to appeal a conviction in municipal court, first to the Law Division and then to the Appellate Division. Courts have the authority to grant a stay of the driver’s license suspension pending the appeal. The New Jersey Supreme Court recently ruled on a DWI defendant’s challenge to the standards used by a lower court regarding his request for a stay. The court’s ruling in State v. Robertson finds that DWI defendants are presumed eligible for a stay when they request a trial de novo from the Law Division.

For a first-time DWI offense, when a defendant’s blood alcohol content (BAC) is at least 0.08 percent but less than 0.10 percent, the DWI statute mandates a three-month period of license suspension. If a defendant charged with their first offense had a BAC of 0.10 percent or higher, the court may set the length of the suspension between seven months and one year. A second DWI conviction results in two years of license suspension. The suspension period for a third or subsequent offense is 10 years.

Rule 7:13-2 of the New Jersey Rules of Court allows municipal judges to stay “a sentence or a portion of a sentence” while a defendant prepares an appeal. Higher courts may have the authority to grant stays under Rule 3:23-5. The New Jersey Supreme Court identified a three-part test for determining whether to grant a stay in 1982 in Crowe v. De Gioia. A defendant must establish that (1) the denial of a stay would cause “irreparable harm,” (2) the request “rests on settled law,” and (3) “greater harm would occur if a stay is not granted than if it were.”

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Car DashboardNew Jersey law regarding driving while intoxicated (DWI) establishes multiple penalties for a DWI conviction, including a license suspension, fines, and the installation of an ignition interlock device (IID) in some cases. The related offense of refusal to submit to breath testing and failing to install an IID as ordered also result in a license suspension. A bill currently pending in the New Jersey Legislature would modify existing state law by reducing the mandatory period of license suspension for certain offenses, while also increasing the mandatory use of an IID. Introduced in the Assembly as A4016, the bill has passed out of the Assembly Judiciary and Appropriations Committees. Its Senate counterpart, S2447, is currently awaiting action by the Senate Judiciary Committee.

Under current law, the length of the mandatory license suspension for a first DWI conviction depends on the defendant’s blood alcohol content (BAC). If the BAC is at least 0.08 percent but less than 0.10 percent, state law mandates three months of license suspension. For a BAC of 0.10 percent or higher, the license suspension is at least seven months but not more than one year. A conviction for refusal results, under current law, in a license suspension of seven months to one year. A failure to install an IID as ordered by a court currently results in a one-year license suspension.

The New Jersey Legislature passed a bill in 2015 reducing the length of license suspensions in DWI and related cases, but the Governor conditionally vetoed it. The license suspension provisions of A4016/S2447 are an effort at compromise. For first-time DWI offenses, the license suspension for defendants with a BAC of at least 0.08 percent but less than 0.10 percent would be 30 days under the new bill. For a BAC of at least 0.10 percent but less than 0.15 percent, the suspension period would be 45 days. For a BAC of 0.15 percent or higher, it would be 90 days. A refusal conviction would result in a license suspension for 90 days. Unlike the other offenses, a failure to install an IID would result in an increased suspension for 18 months, instead of the current one year.

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alcoholA conviction for driving while intoxicated (DWI) in New Jersey results in a mandatory period of driver’s license suspension, ranging from a minimum of three months for a first offense to 10 years for a third or subsequent offense. Driving while one’s license is suspended (DWLS) is a separate motor vehicle offense under New Jersey law, with possible penalties including fines, revocation of one’s vehicle registration, and jail time. In certain circumstances, a person can face a criminal charge for DWLS. Two defendants recently appealed their criminal DWLS convictions, arguing that the criminal statute did not apply in their circumstances. The New Jersey Appellate Division ruled in the defendants’ favor in both cases, State v. Jivani and State v. Torella, based on its own ruling on the same issue in 2015 in State v. Perry.

New Jersey’s criminal DWLS statute applies when a person is charged with DWLS while they are subject to a license suspension due to a conviction for DWI or refusal to submit to breath testing, and they have either (1) a prior conviction for DWLS during the same period of license suspension, or (2) a prior conviction for DWI or refusal. The first option applies when the person only has one DWI or refusal conviction, and when the statutory license suspension period is between three months and one year. The second option involves a second or subsequent DWI or refusal conviction, with a suspension period lasting two to 10 years. The statute imposes a mandatory 180-day jail sentence.

Once a driver’s license suspension term expires, a person must affirmatively request the reinstatement of their license from the state. They may still be subject to a DWLS charge if they resume driving without reinstating their license. The central question presented in the cases mentioned above is whether the criminal DWLS statute applies after a person completes their statutory period of license suspension, but before they reinstate their license.

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Athabasca Glacier, CanadaA conviction for driving while intoxicated (DWI) can have an impact far beyond any penalties imposed by a court. New Jersey’s DWI statute prescribes penalties that can include fines, a license suspension, the use of an ignition interlock device, and jail time. Laws at both the state and federal levels may impose restrictions, such as ineligibility for certain licenses or permits. A New Jersey DWI conviction may also affect a person’s ability to travel abroad. Canada, to name just one example, may bar someone from entering that country if they have one or more DWI convictions. This is a lesser-known consequence, but it could be an important factor to consider during the DWI prosecution process.

Each country’s immigration laws define who may enter the country and under which circumstances. People who want to visit a particular country must obtain that country’s permission. They may be able to do this by obtaining an entry document known as a visa. The United States issues visas to people intending to remain here permanently and to people who are coming here on a temporary basis. Nationals of some countries may come to the U.S. temporarily without a visa under the State Department’s Visa Waiver Program (VWP), provided they meet all the other requirements for admission.

U.S. immigration law states that certain people are inadmissible to the U.S., even as temporary visitors. These include people who admit to the use of illegal drugs, whether or not they have a drug-related criminal conviction. Canadian citizens, who do not need a visa under the VWP, may still find themselves denied entry to the U.S. if they admit to having ever used marijuana or other drugs. A DWI conviction may also be grounds for inadmissibility to the U.S., or grounds for revocation of a visa once someone is already here. Other countries’ bans on people with DWI convictions are not that different from our own laws.

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