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NJ DWI FAQ's Part Three

Posted by attorney Theodore Sliwinski

17. My BAC readings were below .08%, and I also refused to submit to a breath test. Can the prosecutor still convict me for a DWI even without having this evidence?

Yes, you can still be convicted even if your BAC level is below .08%. This is not very common but it does occur. A DWI charge is a per se violation. This means that if the prosecutor proves that your BAC level is .08% or greater than you are automatically guilty of a DWI. However, there are also the field tests, the officer’s observations, and other observation evidence that can be used to convict you even if your BAC was below .08%

The prosecutor can prove that you were guilty of a DWI if you failed the field sobriety tests. The officer’s observations can also convict you. Observations such as fumbling documents or the smell of alcohol on your breath can be very damaging evidence as well. If you had an open container of beer or alcohol in your vehicle this could be critical evidence in your case. Based on the totality of reviewing all of this evidence the prosecutor can still convict a defendant even if his BAC levels were below the threshold level of .08%.

18. If I was charged with both a refusal and a DWI, when I go to court won’t the prosecutor just dismiss one of these charges?

Most likely not. The New Jersey Attorney General Guidelines clearly provide that a municipal prosecutor should not permit a defendant to simply plead guilty to a DWI, and then dismiss the refusal case. For any DWI case there is no sympathy or giving breaks to a defendant. If you are charged with a DWI you might as well go to court and tell the judge your name is “Satan." The prosecutor will want to “run up the score" and convict you for both the DWI and for refusal. If you are convicted for both a DWI and for a refusal then you will receive consecutive sentences. This means that you will first have to serve your DWI sentence, and then you will have to serve your refusal sentence. Nonetheless, if you hire a lawyer and if he builds a strong case for you, then you may be able to convince the court to run both the DWI and the refusal sentences on a concurrent basis. This means that you will be able serve both the sentences at the same time. Consequently, you will be able to get back on the road, and have your driver’s license reinstated in half of the time.

19. What are the sentences for a DWI in New Jersey?

For the first offense DWI the fines range between $250 and $400. A defendant must attend Intoxicated Driver Resource enter (IDRC) for 12 to 48 hours. A driver must pay $100 for the IDRC program. A defendant must also pay a $50 Violent Crimes Compensation Board (VCCB) penalty, and a $75 Safe Neighborhood Fund Assessment. A driver can be sentenced to up to 30 days in jail. A defendant will also lose his driver’s license from 7 to 12 months. Finally, for a first DWI offense the DWI defendant must also install an interlock device if his BAC was 0.15% or higher. The court has the discretion to to require the ignition interlock device for a period for 6 months to 1 year following the restoration of the defendant’s driver’s license.

If a defendant is able to have the DWI charge dropped to a tier one DWI, then he will only lose his driver’s license for 3 months. A defendant must have a BAC less than .10% in order to receive the shorter driver’s license suspension.

For a second DWI offense the fines range from $500 to $1,000. A defendant must perform community service for a period of 30 days. A defendant must attend the IRDC for 12 to 48 hours. A defendant must pay $100 to attend the IRDC program. A driver must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A defendant can be sentenced to a jail term for up to 90 days. Finally, a defendant will lose his driver’s license for a mandatory 2 years. After the suspension is over the defendant will also be required to install an ignition interlock device for 1 to 3 years.

For a third or a subsequent DWI offense a defendant will be fined $1,000. The defendant must also attend the IDRC for 12 to 48 hours. A defendant must pay $100 for the IDRC program. A defendant must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A defendant will be sentenced to jail for a term of 180 days. However, 90 days of the jail sentence can be served performing community service. A defendant will also lose his driving privileges in New Jersey for 10 years. After the suspension is over, the defendant will then have to install an ignition interlock device for 1 to 3 years.

20. What happens if a DWI defendant is stopped in a “School Zone?"

If a DWI defendant is arrested in a “School Zone" then basically the fines and the length of the driver’s license suspension are doubled. This is a strict liability offense. The DWI stop must occur within 1,000 feet of the “school zone." For a first time offense, the license suspension is 1 to 2 years. For a second time offense, the license suspension is 2 to 4 years. The jail terms and the fines are also doubled. The “school zone" provisions are often used as leverage for the prosecutor to obtain a conviction. In many cases the prosecutor may drop the “school zone" charge in return for a straight plea to the DWI charge. A defendant can’t use the defense that since school was closed then this area can’t be considered to be a “school zone." A defendant can be charged for this offense even if he is stopped in the middle of the night, and even if there is no school in session.

21. What is the “Ten Year Rule"?

The “Ten Year Rule" basically means that a ten-year-old DWI conviction cannot count as a prior conviction for DWI sentencing purposes. The “Ten Year Rule" does not apply in a third time offender case. I predict that the “Ten Year Rule" will be abolished shortly. The basic premise of this rule is that a DWI defendant should not receive a sentencing enhancement if his prior DWI conviction is ten years old or more. The “Ten Year Rule" can get very complicated. However, in many cases this rule can save a DWI defendant from being sentenced as a second offender.

22. Does a DWI conviction in another State besides New Jersey count as a “prior conviction" for sentencing purposes?

In many cases a DWI defendant may have a prior DWI conviction(s) in another state. A DWI conviction in another state also counts as a prior conviction for New Jersey DWI sentencing purposes. However, an experienced DWI attorney can always argue that the constitutional guaranties of the prior sister state DWI conviction is illegal. Therefore, a crafty lawyer can always make arguments that the out of state DWI conviction should not count as a prior conviction.

Before a DWI defendant is sentenced the Municipal Court judge must run the driver’s abstract, and then review it for any prior DWI convictions. In many cases a DWI defendant’s prior out-of-state conviction(s) will not appear up on the abstract. A DWI defendant has an obligation to be truthful and to inform the Municipal Court of his prior out-of-state DWI convictions. Many sneaky DWI defendants lie to the Municipal Court judge, and they refuse to disclose their prior out of state DWI convictions. Sometimes, they get away with these lies and sometimes they are busted. If the defendant is busted then he could be ultimately indicted for perjury charges.

23. What are the legal ramifications if a New Jersey resident obtains a DWI conviction in another State?

If a New Jersey citizen obtains a DWI conviction in another state then he eventually he will also be suspended in New Jersey. Once the out-of-state DWI conviction is finalized, then the sister state will eventually report it to New Jersey MVC. Thereafter, the NJ MVC will file an administrative case to request a suspension of the defendant’s New Jersey driver’s license. The New Jersey defendant will also receive MVC surcharges, and he also will be required to attend IDRC classes.

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