Articles Posted in Effect of Arrest or Conviction

A 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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A conviction for driving while intoxicated (DWI) or refusal to submit a breath sample results in mandatory driver’s license suspension under New Jersey law. The length of the suspension depends on whether or not the person has any prior convictions. In DWI cases, a person’s blood alcohol content (BAC) can also affect the length of the suspension. The New Jersey Legislature recently passed a bill, S20, which applies to train engineers employed by the New Jersey Transit Corporation, or NJ Transit. Previously, a driver’s license suspension associated with a DWI or refusal case had no effect on transit engineers’ authority to operate trains. One of the sponsors of S20 in the State Senate called this an “outrageous loophole in state law.”

A first-time DWI conviction in New Jersey results in a three-month driver’s license suspension, provided that the defendant’s BAC was less than 0.10 percent. If their BAC was 0.10 percent or higher, the mandatory period of license suspension is at least seven months, up to a maximum of one year. A second DWI conviction results in a two-year suspension, regardless of the defendant’s BAC. For a third or subsequent conviction, the suspension period is ten years.

New Jersey’s implied consent law states that anyone driving on the public roads of this state has consented to providing breath samples to police if they suspect DWI. Refusal to submit a breath sample under these circumstances is itself a motor vehicle offense. The length of the mandatory license suspension is similar to the DWI statute: seven months to one year for a first offense, two years for a second offense, and ten years for a third or subsequent offense. Out-of-state convictions for a similar statute may constitute a prior offense for the purpose of determining the length of the suspension.
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New Jersey law imposes mandatory minimum sentences for certain offenses. A conviction for driving while intoxicated (DWI) in New Jersey can result in a mandatory minimum sentence if a defendant has multiple prior convictions. Mandatory minimum sentences may also apply to criminal offenses related to DWI. The New Jersey Superior Court, Appellate Division recently ruled that a trial court violated state law by pronouncing a sentence that was less than the mandatory minimum. In addition to DWI, the defendant in State v. Locane was convicted of the criminal offenses of second-degree vehicular homicide and third-degree assault by auto. The two criminal offenses carry mandatory minimum sentences.

New Jersey’s DWI statute states that a third or subsequent DWI offense shall result in a 180-day jail sentence, but it allows a judge to lower that sentence by one day for each day a defendant spends in a drug or alcohol treatment program, up to a total of 90 days. Although judges have the discretion to reduce a defendant’s jail time by up to half, a third or subsequent DWI offense effectively has a 90-day mandatory minimum sentence.

If a person operates a vehicle recklessly and causes the death of another person, they could be found guilty of “death by auto,” also known as vehicular homicide. Evidence that a defendant was operating a vehicle while intoxicated, in violation of the state’s DWI law, “give[s] rise to an inference that the defendant was driving recklessly.” Other factors that allow a judge or jury to infer recklessness include 24 consecutive hours without sleep and the use of a cell phone while driving. Vehicular homicide combined with DWI carries a mandatory minimum prison sentence of three years, with no eligibility for parole during that time. The law allows judges some discretion but requires them to explain their reasons for deviating from the minimum.

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America, as the saying goes, is a nation of immigrants, meaning that most Americans living today are descended from people who came here from another country. People still come to New Jersey and elsewhere in the country from all over the world. Traveling or moving to the U.S. usually requires a visa issued by the federal government. Aside from foreign diplomats and consular officials, the laws of the U.S. fully apply to anyone with a visa, and certain legal troubles can have a significant impact on a visa holder’s ability to remain in the U.S. The Department of State (DOS) uses a process known as “prudential visa revocation,” which allows it to revoke a person’s visa if they are arrested for driving while intoxicated (DWI). This could apply even if the person is never convicted of DWI.

Visas generally fall into two categories:  immigrant visas and nonimmigrant visas (NIVs). Immigrant visas, commonly known as “green cards,” allow people to become permanent residents and possibly apply for naturalization as U.S. citizens. The government issues NIVs to people to come to the U.S. for a particular purpose, such as a job or school. NIV holders must return home when their visas expire.

Federal immigration law identifies multiple categories of people who are “inadmissible” to the U.S., meaning that the government may not issue them visas. These include a history of prior immigration violations, convictions for certain “aggravated felonies,” national security concerns, and “health-related grounds.” These grounds apply to both immigrant visas and NIVs, but NIVs are generally more susceptible to revocation. The DOS and its consular officers have the authority to revoke a NIV “at any time, in [their] discretion.”

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New Jersey courts have established various rules that protect defendants’ Sixth Amendment rights in driving while intoxicated (DWI) cases. One such rule, established by the New Jersey Supreme Court in 1990 in State v. Laurick, mitigates certain penalties imposed on a DWI defendant if they pleaded guilty in a prior DWI case without an attorney, and they were not given the opportunity to waive their right to counsel. The New Jersey Appellate Division applied this rule earlier this year in State v. Donnelly, reversing a DWI defendant’s jail sentence and remanding the case to the trial court.

Penalties for a DWI conviction vary, in part, based on a defendant’s number of prior DWI convictions. A first offense includes a penalty of up to 30 days in jail. For a second offense, state law imposes a minimum jail term of 48 hours, up to a maximum of 90 days. A third or subsequent offense carries a mandatory minimum jail sentence of 180 days. The Laurick decision set limits on courts’ ability to use prior uncounseled guilty pleas to impose enhanced jail sentences in DWI cases. The court cited a 1971 case, Rodriguez v. Rosenblatt, which held that defendants have a right to counsel whenever they face a “consequence of magnitude,” which includes a jail sentence of any length.

The defendant in Laurick was arrested for DWI in 1985. He had a prior DWI conviction from 1982, in which he pled guilty without an attorney. He stated that he was unaware of his right to counsel at that time, and that the court did not advise him of this right. He was sentenced in 1987 as a first offender with regard to the jail term, on the basis that the 1982 guilty plea should not count as a prior conviction. The New Jersey Supreme Court upheld this sentence in 1990.

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Driving while intoxicated (DWI) and related offenses, including driving while license suspended (DWLS), are considered traffic offense under New Jersey law, rather than criminal offenses. Under certain circumstances, however, the state can charge DWLS as a criminal offense with a much greater penalty. This might occur when a driver has multiple prior DWI or DWLS convictions at the time of the alleged DWLS offense. A defendant recently argued to the New Jersey Superior Court, Appellate Division that a criminal DWLS charge should not apply to him because only one prior DWI conviction was from New Jersey, and the statute therefore does not allow courts to consider out-of-state convictions. The Appellate Division rejected this argument in late April 2016 in State v. Luzhak, meaning that out-of-state convictions count toward criminal DWLS.

A conviction for DWI or DWLS as a traffic offense may result in jail time and fines, in addition to a driver’s license suspension, but the maximum penalties are generally lower than those for many criminal offenses. Absent any aggravating factors, such as involvement in an accident that causes a bodily injury to someone, the maximum penalty for a third or subsequent simple DWLS conviction is a $1,000 fine and up to 10 days in county jail. A conviction for criminal DWLS, however, results in a mandatory minimum 180-day jail sentence, the same sentence imposed for a third or subsequent DWI conviction.

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A driving while intoxicated (DWI) conviction comes with a mandatory period of license suspension, as well as the possibility of a fine and jail time. Subsequent convictions bring greater penalties. The offense of driving while license suspended (DWLS) also results in penalties, and it is considered a criminal offense in certain circumstances. Beyond New Jersey’s traffic and criminal statutes, DWI and DWLS may have consequences in other areas as well. In one recent case, several prior DWI convictions, and the resulting license suspension, brought two parents to the attention of state child protection workers. The New Jersey Appellate Division addressed this in its decision in New Jersey Div. of of Child Prot. and Permanency v. P.A.

The penalty for a first DWI conviction depends on the defendant’s blood alcohol concentration (BAC). If the BAC was 0.08 percent or greater, but less than 0.10 percent, New Jersey law imposes a penalty that may include a three-month license suspension, a fine of $250 to $400, 12 to 48 hours of programs at the Intoxicated Driver Resource Center, and up to 30 days in jail. If the defendant’s BAC was above 0.10 percent for the first conviction, the fine is $300 to $500, and the period of license suspension is seven months to one year. By the third or subsequent offense, the jail term is at least 180 days, and the period of license suspension is 10 years.

A first-offense DWLS carries a fine of $500. If the reason for the underlying license suspension was a DWI conviction, state law also requires the revocation of the defendant’s vehicle registration. Operating a vehicle without a valid registration can result in impoundment of the vehicle. For a second DWLS conviction, the fine increases to $750, and the defendant is subject to a one-to-five-day jail sentence. A third offense leads to a $1,000 fine and a 10-day jail sentence. Criminal DWLS occurs in certain situations involving prior DWI and DWLS convictions, and it carries a mandatory minimum sentence of 180 days’ imprisonment.

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A DWI conviction in New Jersey has numerous repercussions, starting with a three- to seven-month driver’s license suspension for a first offense. Courts may also impose a jail sentence for DWI and order a defendant to complete various services. These penalties are prescribed by the New Jersey Motor Vehicles and Traffic Regulations Code, but other areas of New Jersey law may also impose consequences for a DWI conviction. Defending a DWI case requires understanding all the ways in which the case could affect your life. The New Jersey Appellate Division reviewed the consequences of a DWI conviction for public pension benefits earlier this year in Tavaglione v. Bd. of Trustees, Police and Firemen’s Ret. Sys.

Most public employees in New Jersey at the state, county, and city levels are eligible to participate in pension funds established under state law. A pension is a type of retirement account. An employee makes contributions to the pension account from their wages. The employer establishes a trust to manage these contributions for the employees’ benefit. Upon an employee’s retirement, they receive periodic benefit payments.

Laws like the federal Employee Retirement Income Security Act (ERISA) and the New Jersey Public Employees’ Retirement-Social Security Integration Act establish guidelines that employers must follow in the management of pensions and other retirement funds. New Jersey, along with other states, also sets guidelines that public employees must follow in order to receive benefits. New Jersey law states, first and foremost, that pension benefits are dependent upon “the rendering of honorable service by a public officer or employee.”

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The Fifth Amendment to the U.S. Constitution states that a person may not, “for the same offense…be twice put in jeopardy of life or limb.” This is known as the “double jeopardy” clause of the Constitution. Courts have interpreted it to mean—in a very general sense—that the government cannot charge a person with a criminal offense if they have been acquitted or convicted of an offense based on the same act or incident. The New Jersey Appellate Division, in State v. Sorenson, recently considered a DWI defendant’s claim that double jeopardy barred the prosecution’s appeal. A common misconception about double jeopardy is that it prevents the state from appealing any ruling in a criminal case, since it often does not apply to non-final judgments in trial courts.

The double jeopardy clause states that prosecutors cannot charge someone for the same offense more than once. Each phrase in the clause, particularly the phrase “twice put in jeopardy,” has been subject to extensive judicial scrutiny. Double jeopardy unquestionably applies once a person has been acquitted or convicted of a particular offense. For example, if a person is charged with DWI and acquitted (or convicted) by a municipal court, the state cannot charge that person with DWI again for the same incident. Prosecutors also could not appeal the acquittal itself.

When a case does not result in a final judgment of conviction or acquittal, however, double jeopardy becomes much more complicated. If a court dismisses a case based on a defendant’s pre-trial motion, the prosecution might be able to appeal that order. If an appellate court rules in the state’s favor, the case would proceed as though the dismissal had not occurred.

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A new law that will take effect in New Jersey in several months will reduce the waiting periods for the expungement of criminal records, which is the process by which a person may have records of arrests, charges, and convictions removed from the public record. Unfortunately, New Jersey law does not allow expungement in driving while intoxicated (DWI) cases. Post-conviction relief (PCR) is the only means of removing a DWI case from one’s driving record. The new law is still good news for New Jersey, and it should be of interest to people charged with a criminal offense in connection with a DWI.

New Jersey law defines “expungement” as “the extraction and isolation of all records on file” with courts, law enforcement agencies, jails, and prisons regarding arrests, trials, convictions, and other dispositions. Records to be expunged include warrants, jail rosters, fingerprints, mugshots, and court dockets. Certain serious criminal offenses are excluded from eligibility for expungement, such as murder, manslaughter, rape, robbery, arson, and conspiracy to commit any of the listed offenses. For any other criminal offense, a person may petition for expungement after a specified period of time has elapsed, provided they have no other criminal convictions and meet the statute’s other requirements. For disorderly persons offenses and petty disorderly persons offenses, the waiting period before eligibility for expungement is shorter than for criminal offenses.

Motor vehicle offenses, which include DWI, are expressly excluded from eligibility for expungement. The only method allowed by New Jersey law for removing a DWI from a driving record is the PCR process, by which a person files a petition in the municipal court that handled the DWI case. Rule 7:10-2(c) of the New Jersey Rules of Court sets out the grounds for PCR, most of which relate to circumstances at the time of the conviction. These include a violation of the petitioner’s constitutional rights during conviction proceedings, the court’s lack of jurisdiction to impose a sentence, and the imposition of a sentence that deviates from state law. The rule also allows PCR based on common-law principles and grounds found in habeas corpus cases. In other words, PCR is only available upon a showing of error or impropriety during the original DWI proceeding, while expungement is often available based on good behavior and the passage of time.

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