My nephews 1st DU was when he was 19, he was charged with DUI as well as DUI as a minor. He i now @@ and recently received a second one. We were told that we should attempt to have his 1st one amended, since he should have NOT been sentenced for...
here is a significant difference in sentencing for a 1st DWI and 2nd DWI. For example, a 2nd DWI carries a mandatory 2-year license loss, 30-days community service, 2 to 90 days jail and installation of an ignition interlock device (for 1 to 3 years as a condition of license restoration). A 1st offense carries a 90-day to one-year license loss (depending on the evidential blood-alcohol concentration) and up to 30-days jail (rarely imposed).
Your nephew has a right to go back into the court where he was convicted for his first (DWI) offense through a procedure known generally as post-conviction relief (or a motion to vacate a plea). If the application is successful (vacating the DWI conviction), his sentencing exposure for the current DWI would be as a 1st statutory offender.
Because he was underage at the time of the first offense (i.e. not of age to consume alcohol), he was also charged with N.J.S. 39:4-50.14 ("Operation by Person Who Has Consumed Alcohol Who Is Below Age to Purchase Alcoholic Beverages"). This offense is incorrectly and often referred to as "underage DWI" - it is not a "DWI", but a charge of being underage to consume alcohol and driving with a blood alcohol concentration (BAC) of .01% or higher. This is substantively different than driving while intoxicated or with a BAC of .08% or higher. It is possible to be convicted of both DWI (N.J.S. 39:4-50) and N.J.S. 39:4-50.14. However, if an argument can be raised to challenge the DWI charge (evidence), it is possible to vacate the DWI plea and leave only the N.J.S. 39:4-50.14 (underage) charge and plea. It sounds like this is a prudent option to explore.
These applications are time-sensitive (i.e. there are filing deadlines) and because DWI cases move quickly in the system (they take priority), they should be explored and filed as soon as possible. I therefore, suggest that your nephew speak with his lawyer (or a NJ DWI lawyer if he has not yet hired counsel) regarding his options, including the viability of the application and time-constraints.See question
I was charged with dwi 10 years ago and I never took care of it. Now I have a court date but I live in Arizona. I am also disabled. Can I hire an attorney to go on my behalf or so I have to appear in person?
A lawyer may enter your not guilty pleas and, with the Court's consent, appear on your behalf for scheduled pre-trial appearances. The Jersey City Municipal Court will usually waive a defendant's appearance for pre-trial appearances (based on my experience with the Court). If however, the case requires a trial, you must appear. If the case is resolved with a plea to the DWI (and obviously, you should fight the case and attempt to avoid a plea), NJ Rules of Court (R. 7:12-3(a)) require an appearance - unless the Court relaxes this requirement under R. 1:1-2. Hire an experienced NJ DWI Lawyer to guide you through this.See question
I made a very big mistake in deciding to drive after having had too much to drink. No accident, no property damage. I was stopped and convicted of dui. I paid my court costs, I lost my license, I pay a monthly surcharge, I went to the 48 hour I...
Every person convicted of DWI in NJ must participate in the New Jersey Intoxicated Driving Program (IDP) through a referral to a County Intoxicated Driving Resource Center (IDRC). The Intoxicated Driver Resource Center has the sole authority to refer a person to treatment and through a specific modality after taking into consideration: a blood alcohol concentration of .15% or higher, a counselor's evaluation of the answers in the evaluation form, any prior treatment, driving record, counselor interview and observations, outside information and the age of the offender. The IDP regulations talk about "treatment" - and the IDRC referred you for "testing." An argument can be made that testing is not authorized - that following the IDRC evaluation, you need treatment or you do not. However, the intent of the regulations would appear to allow testing. In any event, if you do not comply with their recommendations, you can be held in contempt of the court's order, face a jail sentence (rare) and your license will be indefinitely suspended until you comply. Information about the NJ IDRC is contained on the State of NJ website here: http://www.state.nj.us/mvc/Violations/dui_Intoxicated.htmSee question
I always hear it's $83/month but can everyone get this payment plan or does one have to be below the poverty level or some other earnings threshold and if so what is the criteria? Thanks in advance.
Yes, anyone may pay the NJ DWI surcharge (http://www.state.nj.us/mvc/Violations/Surcharges.htm) through monthly installments (twelve payments of $83.33). The surcharge bill will contain payment instructions (including the monthly payment option).See question
I drove my friend to work.I got lost going back so i decided to stop at a gas station park the car and went inside to buy coffee.i went out i noticed 2 police cars,i walk towards the car.police was calling my friends name,are you Melanie i said no...
N.J.S. 39:3-40 (Driving While Suspended) makes it unlawful for someone to "personally operate a motor vehicle during the period of … suspension." The prosecutor has to prove the statutory element of "operation" beyond a reasonable doubt. The State can prove operation without a witness who actually saw the defendant driving - for example, by circumstantial proof that the defendant drove or intended to drive. The facts you mention might be enough to establish that you either drove or intended to drive, but without a careful review of the State's evidence, this is impossible to say with precision.
The offense appears to fall under N.J.S. 39:3-40(i), addressing parking-ticket related suspensions. ("If the violators drivers license to operate a motor vehicle has been suspended pursuant to section 9 of P.L.1985, c.14 (C.39:4-139.10), the violator shall be subject to a maximum fine of $100 upon proof that the violator has satisfied the parking ticket or tickets that were the subject of the Order of Suspension"). Despite the reduced penalties, a conviction carries a NJ MVC surcharge of $750 (http://www.state.nj.us/mvc/Violations/Surcharges.htm) and a negative impact on car insurance rates. Therefore, you should speak with and hire a NJ Municipal Court lawyer to protect and guide you.See question
Got pulled over being being on a left lane at 2:01AM. Tested by walking and saying the alphabet, taken to the station, given breathalyzer and blew a 0.1 (only tested once). Given 4 tickets: traffic on marked lanes, failure to keep right, reckles...
The system is adversarial (https://en.wikipedia.org/wiki/Adversarial_system). The Prosecutor is an advocate for and represents the State. Although the Prosecutor's advocacy role is unique in that, he/she is obliged to accomplish justice, the Prosecutor nonetheless, represents the interests of the State. A defense lawyer on the other hand, is fully obligated to your interests - he/she is obligated to safeguard your constitutional rights to a fundamentally fair process (i.e. due process) and to a afford you a thorough and zealous defense (i.e. effective legal representation) within the bounds of legal ethics. Relying on the Prosecutor is simply not wise in a DWI case. Hire an experienced DWI defense lawyer.
New Jersey Supreme Court Rules prohibit plea-bargaining in DWI cases (http://www.judiciary.state.nj.us/rules/plea.pdf). Therefore, wining a DWI case requires a careful review of the State's evidence to pinpoint defects in the State's case and viable legal defenses. New Jersey does not recognize the term or offense of "wet reckless" (http://legal-dictionary.thefreedictionary.com/wet+reckless). Reckless driving (N.J.S.A. 39:4-96) is, however, a recognized offense in New Jersey. Because NJ does not allow plea-bargaining in DWI cases, at times, a DWI charge is dismissed (where the State's proofs are lacking) and a defendant will plead guilty to reckless driving. It is impossible for any lawyer to give you "possible outcomes" or "chances" now. Your defense requires a thorough professional review of the State's case and possibly a full pre-trial hearing or trial.See question
I have a NJ driver's license. I was driving in MD, where i received a speeding ticket. I have read NJ DMV gives you 2 points for any out of state traffic violation. Does that mean I would receive 2 + points, ie. if the speed was 1-14 over limi...
Under N.J.S.A. 39:5D-4, all out-of-state violations transfer to your NJ MVC history as two-points only. See NJ MVC Point Schedule (from the NJ MVC official; website) here: http://www.state.nj.us/mvc/Violations/penalties_pointSchedule.htmSee question
What should be the the temp with breathalyzer machine please
Your testing was likely not from a "breathalyzer", but from an "alcotest" (http://www.draeger.com/sites/en_in/Pages/Alcohol-and-Drug-Detection/Draeger-Alcotest-7110-Evidential.aspx). The breathalyzer was phased out in NJ at latest, in 2008.
The column "result % BAC" in the alcohol influence report lists the results of: (1) the air blanks (to ensure that no alcohol remains in the instrument and to rule out environmental contamination), (2) accepted breath tests (analyzed by both infrared (IR result) and Fuel Cell (EC result) technology) and any unaccepted breath tests, and (3) control tests (from a standard solution simulating a .10% breath, within acceptable tolerance and heated to 34.0 degrees Celsius - note that the alcotest does not have a "temperature" as you posed your question; the simulator solution is heated to 34.0 degrees.
Reckless Driving (N.J.S. 39:4-96) carries upon a conviction, a fine of $50 to $200 and/or jail not to exceed 60-days (see http://www.judiciary.state.nj.us/notices/sorted.pdf). Jail is technically possible under the statute (N.J.S. 39:4-96). However, jail is rare - limited to cases with extremely aggravating circumstances (for example an accident with injuries and/or a very bad driving history). The charge also carries five NJ MVC "points" (see http://www.state.nj.us/mvc/Violations/penalties_pointSchedule.htm). Lastly, the Court can suspend your New Jersey driving privileges (there is no lower of upper limit - the suspension is in the Court's discretion) if the reckless driving is deemed "willful" (the court will weigh aggravating and mitigating factors - see http://caselaw.findlaw.com/nj-supreme-court/1531270.html). Hire a NJ traffic lawyer to ease your uncertainty and to protect you.See question