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NJ DUI 3rd offense; resentencing 3 years after guilty plea and completion of sentence.

Stratford, NJ |

I received a 3rd DUI in May 2005. The first was in 1986, the second in 2002. The 2002 charge was considered a 1st offense, since more than 10 years had passed. Case law in NJ dictates that the step down is a one time thing and a subsequent charge is treated as a 3rd offense. However, my lawyer successfully lobbied for the 2005 charge to be treated as a 2nd rather than a 3rd offense. I pled guilty to a 2nd offense, with my lawyer, the prosecutor, and the judge knowing that it was actually my 3rd DUI. Two years later, having satisfied all of the requirements of the 2nd offense sentence, I was about to get my license back when I received a new summons on the '05 offense, saying that I was now to be charged as a 3rd offender. I figured it had to be a mistake, and I went to the court to explain the situation. The judge explained that it was not a mistake, that the '05 charge HAD to be a 3rd offense, and that the 2nd offense sentence (which I had almost completed) was illegal. He informed me that the situation called for a 3rd offense charge, and that the previous judge lacked the discretion to give me a second step down. He said that the 3rd offense sentence was mandatory, and that any sentence falling short of the mandatory minimum was illegal. He informed me that an illegal sentence can be corrected at any time, and that I was now facing a 10 year license suspension and 6 months in jail for a charge to which I had pled guilty more than 2 years ago. My lawyer argued the fundamental unfairness of changing the sentence after a guilty plea, and the judge stayed the new sentence pending an appeal to the Superior Court. After the stay, I was allowed to get my license back, having completed the original sentence. My lawyer attended the appeal without my presence, and his argument fell on deaf ears. He was told that the original judge erred in allowing the charge to be treated as a 2nd offense, that the 3rd offense charge was beyond discretion, and that the illegal sentence had to be corrected. My lawyer argued that we would have never pled guilty if it was going to be a 3rd offense. He did win relief on this, so as a compromise I was allowed to withdraw my guilty plea. The 3rd offense charge has now been reinstated, and I have a new court date in an adjacent town (new judge, new prosecutor) set for Dec 16. I am now unrepresented, as my lawyer doesn't seem to have a good strategy for fighting the charge. My choice is to pay him a lesser amount for subpar representation, or to pay a DUI lawyer 5 times as much on a wing and a prayer. I truly can not afford to pay a DUI lawyer $10G. What are my options here? Can they really do this to me? Here are the circumstances that led to the '05 arrest: the officer watched me leave a local bar and followed me as I drove home. He pulled me over less than one block from my house, saying I was driving erratically. I was not speeding, and I do not acknowledge driving erratically. My BAC was slightly above .20, more than twice the legal limit. Please advise.

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Attorney answers 1


It sounds to me like your first attorney did a fabulous job for you. Your characterization of his job being "sub par" says more about you than him. Obviously, you were counting on what he convinced a prior Judge to do to stand up and it didn't because the appellate court found the original sentence to be illegal. Instead of dismissing him, why not appeal to a higher court first? Second, you appear to have some decent issues that could be argued before a court/jury regarding probable cause, etc. that seem persuasive. I don't think you need a DWI attorney to pursue them.

Secondly, there are a host of other arguments that can be made to a situation such as yours. From what you said, your original lawyer sounds like he did a great job. Perhaps you're just dissatisfied because of the outcome. I think you should reconsider your position about him.

Good luck.