Effect of Arrest or Conviction

July 14, 2017

New Jersey Supreme Court Addresses Stays of Driver’s License Suspensions in DWI Appeals

A 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.”

February 26, 2017

Proposed New Jersey DWI Legislation Addresses License Suspension, Ignition Interlock Requirement

by Evan M. Levow

New 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.

November 2, 2016

New Jersey Appellate Division Reverses Criminal DWLS Convictions Based on Recent Precedential Decision

by Evan M. Levow

A 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.

October 12, 2016

How a DWI Conviction in New Jersey Could Affect Your International Travel Plans

by Evan M. Levow

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.

October 2, 2016

New Jersey Legislature Passes Bill Affecting Transit Engineers With DWI-Related License Suspensions

by Evan M. Levow

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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September 23, 2016

New Jersey Appeals Court Orders Resentencing in DWI, Vehicular Homicide Case

by Evan M. Levow

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.

September 19, 2016

DWI Arrest Could Have Significant Immigration Consequences, According to U.S. State Department

by Evan M. Levow

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.”

June 13, 2016

Uncounseled Guilty Plea Should Not Count as a Prior Offense in New Jersey DWI Case, According to Appellate Division

by Evan M. Levow

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.

May 10, 2016

DWI Convictions from Outside New Jersey May Count Toward Priors Leading to Criminal Charge for Driving with a Suspended License

by Evan M. Levow

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.

April 28, 2016

DWI Conviction History Brings Parent to the Attention of New Jersey Child Protection Agency

by Evan M. Levow

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.