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What happens to a 3rd DWI offense if you re-open the 2nd DWI case knowing you can win and the 1st one was 13 years old?

Clementon, NJ |

My 1st DWI was in 1999, my 2nd was in June of 2009, my 3rd was in December of 2009. I already did 6 months in jail for the 3rd so everyhing is done with all of them. I am going to try and re-open the 2nd for the 20 minute observation. I know I can win but the lawyer I had at the time did not try to fight it. The officer that did the breath test came in the room 3 mins. after the arresting officer left only to give the test. He was there maybe 10 mins. The times are in the Discovery. So what would happen if I won? Thank You

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Attorney answers 3


In Wisconsin, the current third would count as a second offense.

However, I wouldn't hold my breath getting the second reversed after this amount of time over this error.

Confidential information should not be disclosed in this Internet forum. I am a Wisconsin lawyer. The laws in each jurisdiction can be very different. I cannot give legal advice over the internet nor can I establish an attorney client relationship with you. You should NOT assume or otherwise conclude that there is an attorney -client relationship between any reader and this writer or his firm. These comments are only guideposts. They are not subject to any privilege protections. Indeed, these internet communications are neither privileged nor confidential. Accordingly, those using this form of communication need to be guarded in what they write. Because of the nature of these communications the information is general only and should not be relied upon in any specific case. This internet site is public forum, where the communications are not confidential or privileged. There may very well be merit to your defense or position in this type of situation. However, there are hardly sufficient details for an attorney to provide you with some path to follow. It is imperative that ALL of the facts in a particular situation be examined. No conclusion can be drawn from the communication that you have provided. There are some matters that are just better handled by an attorney familiar with the procedures of the courts in your area. Most, if not all, legal matters should not be handled via internet communication. At best, the responders on this site can give you a few hints and guidance. To deal with a legal problem, nothing is better than to consult with a lawyer who will give you some time and advice. If you cannot afford an attorney, there should be agencies in your area that can provide discounted, or even free, legal services. Experienced Criminal Defense Lawyer in Madison, Dane County, Wisconsin Talking to the Police - Advice from Lawyers and Police:

James Alexander Abate

James Alexander Abate


Actually, that is not the case in New Jersey. A motion for post conviction relief to withdraw a guilty plea ca. Be filed within 5 years.

Charles K. Kenyon Jr.

Charles K. Kenyon Jr.


I'm impressed! Also 1st offense is civil as in Wisconsin. I thought we were the only holdouts.


If you were to succeed on having one of those DWIs thrown out, you would still be facing penalties as a third offender if you were charged with another one. As to the ten year loss of license on the third, you would have to make a motion to resentence.


If the middle one is vacated and you win the new trial then 2009 would be a step down first. But you only have 5 years on a PCR.

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