New Jersey’s driving while intoxicated (DWI) statute sets multiple levels of penalties, primarily based on a defendant’s number of convictions within the prior decade. Enhanced penalties apply for a second offense within a ten-year period, and again for a third or subsequent offense. A 1999 amendment to the DWI statute created a separate set of penalties, found in subsection (g) of the statute, for DWI on or near school property. Uncertainty has arisen with regard to whether a conviction under one subsection should count as a prior offense in a new case under the other subsection, and how to apply the sentencing enhancements found in each subsection. Decisions from the New Jersey Supreme Court and the Appellate Division have held that the order in which the two offenses occur—(g) followed by (a), or (a) followed by (g)—is important.
The penalties for a second DWI conviction under subsection (a) include a fine of $500 to $1,000, imprisonment of forty-eight hours to ninety days, and driver’s license suspension for two years. A second offense under subsection (g) has harsher penalties: a fine of $1,000 to $2,000, imprisonment of ninety-six hours to 180 days, and a four-year license suspension. The penalties for a third or subsequent offense within ten years are also greater under subsection (g) than subsection (a).
A 2004 New Jersey Supreme Court ruling involved a defendant convicted of DWI under subsection (g), with a prior conviction under subsection (a). The municipal court applied subsection (g)’s enhanced penalties for a second offense. The Appellate Division affirmed this sentence, finding that a second DWI offense in a school zone “can be viewed as an escalating violation.”
The Supreme Court disagreed. It found, based on the language of the 1999 law, that the Legislature intended subsection (g) to be a separate, more serious offense. The sentence imposed by the municipal court under subsection (g) was twice that of the sentence for a second offense under subsection (a). The court declined to impose this far-harsher penalty. It ruled that the defendant’s second DWI conviction was actually a first DWI conviction under subsection (g) and remanded the case for resentencing.
A different scenario came before the Appellate Division in 2016. This time, the defendant had a prior conviction under subsection (g). The municipal court convicted him of subsection (a) DWI. It rejected the defendant’s argument, based on the 2004 “separate offenses” ruling, that it should sentence him as a first-time offender under subsection (a). It imposed the sentence for a second offense under subsection (a).
The defendant raised the same argument on appeal, but the Appellate Division affirmed the sentence. It distinguished the defendant’s situation from the 2004 case by noting how the potential penalties differed. While the potential penalty sought by the state in 2004 was far harsher, the 2016 defendant was arguing for a sentence that would have been less harsh than the one imposed for his first DWI. The court found that imposing a sentence for a second subsection (a) DWI after a sentence for a first subsection (g) DWI was fair.
Evan Levow is a New Jersey DWI attorney who represents people charged with alleged DWI. He can guide you through the court process, help you understand your rights and options, and prepare the best possible defense for your case. To schedule a free and confidential consultation with a member of our experienced and skilled team, please contact us today online or at (877) 593-1717.