I received a DUI and this is my 2nd one in 18yrs. I refused the breatherlizer, not knowing whether I should or had to take it. I asked for legal consult before I take it because I really didn't know if I should. It was after 2 in the morning and wasn't able to reach legal counsel. How much trouble am I in????
As a New Jersey licensed attorney who practices in the municipal courts, I can tell you without any equivocation that Thomas Blauvelt's answer is correct. Cory Lee Fuller should avoid giving answers to questions in jurisdictions where he is not licensed and knows nothing about the law. The only thing I would add is that if you retain experienced and competent New Jersey counsel, you will probably be able to get away with a total license suspension of 7 months, and pay court fines and assessments totaling approximately $664.00 dollars, not including the mandatory surcharge of $1,000.00 per year for three years. (The surcharge is not collected by the Court, but is billed through the Motor Vehicle Commission.) You will also have to have an interlock device placed in your vehicle and attend alcohol education classes at the intoxicated Driver Resource Center for 12-48 hours. These are the absolute minimums under your circumstances.
Pursuant to State v. Burroughs, you are now charged with a 2nd offense DWI, which if found guilty, you would be sentenced as a stepped-down 1st offense as long as offense 1 and offense 2 occurred at least 10 years apart. You did not specify if your Refusal charge is a 1st or 2nd offense, but the 10 year step-down rule applies to Refusal offenses as well.
As for your Refusal charge, there is no right to counsel in NJ before you submit to an Alcotest as NJ is an implied consent state, meaning if you drive on NJ's roads, you consent to submit to an Alcotest when requested.
If you do not speak English, you may have a "language" defense to the Refusal charge which must be dealt with by way of Notice of Motion to Suppress.
NJ will not mandatorily draw your blood under these facts, and you do not mention such blood draw.
You should contact a NJ DWI lawyer to represent you in this matter.
If these offenses are treated for sentencing purposes as 1st offenses, you are facing 90 days loss of license for the DWI, and 7 months to 12 months loss of license for the Refusal, which can run concurrent or consecutive to the DWI loss of license. In addition, you face fines, up to 30 days in jail, 12 - 48 hours IDRC, a registration suspension, imposition of an Interlock device, and NJMVC surcharges of $3,000 over 3 years.
The current DWI/DUI is a legal second offense, but will be treated as a first as the prior occured over ten years ago. It should be noted that a subsequent DWI in less than ten years will not be treated as a second offense, but will be treated as a third. Further, pursuant to State v. Spell, (and other cases) anything other than an unequivocal assent to take the test will be treated as a refusal, with the exception that an ambiguous answer, such as "what will happen if I refuse," or "may I have an attornet present," or silence will require the arresting officer to give further warnings as to the consequences of a refusal.
For a first offense refusal the loss of license is 7 to 12 months. For a first time DWI, with no reading, the license susepnsion period would be 3 months.
It is important to have an attorney, even for a refusal. There may be problems with the stop and probable cause issues with the arrest. There are other possible defenses and speaking to an attorney who is experienced in NJ DWI law is important.
NJ - since your DUI came after 18 years the first offense should have washed out after the 10 year washout period they use in New Jersey. However - they may have drawn blood later at the station as in standard in New Jersey where a blood draw in mandatory. Any other convictions may also affect the "trouble you are in" so it would be best to consult with a local attorney in the County you were in.
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