Facing a Judge Following a DWI Arrest. What New Jersey Motorists May Expect

February 3, 2013

Most people already understand that being arrested for drunk driving here in the Garden State is hardly a walk in the park. Besides the legal issues, just the mere fact that one has been picked up for drinking and driving can cause problems professionally, as well as personally. Once all the embarrassment has passed, then there's the worry about penalties if one is convicted of DWI or drug DUI.

As DWI defense attorneys, the legal experts at the law offices of Jonathan F. Marshall understand the pitfalls of self-representation when a drunken driving charge is looming. At the very least, it's wise to consult with an experienced trial lawyer who knows the ins and outs of New Jersey's DWI law. Considering the potentially expensive and long-lasting effects of a drunken driving conviction, retaining a qualified legal professional to represent you can be a good way to fight a DWI-DUI charge from the get-go.

Seriously, one should always consider the possible downside to losing a drunk driving case. Most anyone who has been accused of drunk driving knows what's at stake. If found guilty, a defendant can be looking at a wide range of penalties -- anywhere from $250 to $1,000 in monetary fines and even possible incarceration (which can range from "just" two days in jail all the way up to six months). Of course, when it comes to a DWI charge, the main factor in determining sentencing is whether or not the offense was a first-, second-, or third-time offense (for anyone who may be wondering, we have seen individuals who have exceeded three DWI offenses in their lifetime).

Sentencing by the court will also be influenced by the blood-alcohol concentration (BAC) reading established during the trial. If admitted by the court, the BAC reading(s) will also be used in determining the penalties for a first offender. It's important to note that, in the case of a conviction, an experienced attorney will usually try to minimizing the defendant's sentence by one of several ways. For our legal team, we usually attempt to mitigate a person's sentence by employing a direct attack on the breath test results presented by the prosecution.

If BAC measurements are brought as evidence, a good attorney will look for any procedural errors made by the police before or during the administration of a breath test (this includes operation or maintenance of a breathalyzer device, such as the Alcotest 7110). If successful, an attack on the mechanical soundness of the breath test machine and/or the qualifications of the operator who administered the test can place serious doubt as to the veracity of that particular evidence.

It has been shown that getting the (BAC) evidence dismissed by the Court can make the difference between having one's license suspended for one year or losing it for just three months. This comes from the New Jersey Supreme Court decision, State v. Moran, in which the Justices clarified the specific factors necessary for sentencing a person convicted of DWI under N.J.S.A 39:4-50.

Although a judge will likely consider the circumstances of the defendant's conduct at the time of the arrest, as well as his or her driving record and any potential hardship caused by a license suspension, ultimately the BAC measurement, if admitted as evidence, can have a strong bearing on sentencing, especially if it was excessively high. We refer to this as an aggravating factor in sentencing. (It goes without saying that if an accident was involved, especially with injuries, that a defendant who shows concern for those victims is likely to receive a more favorable sentence.

Another key factor is the "10-Year Step-down Rule." This rule allows a defendant who had committed a second DWI more than 10 years before the current offense will be treated as a first offender. The law sees this as an acceptable way to treat multiple offenders so long as the time period between those DWI offenses is more than 10 years. But there is a caveat: Although a person could be sentenced as a first time offender twice, so long as those two separate DWI offenses took place more than ten years apart from each other, if convicted of a third drunken driving offense that occurred less than ten years from the second, that individual will be considered by the court to be a third-time offender with all the penalties that go along with that type of conviction.

Please note that the 10-year Step-down Rule does not eliminate past offenses from a driver's record; they still exist in the court's eyes for purposes of sentencing for possible future convictions. Also, remember that the step-down rule does not apply to what we call a "companion" breath test refusal charge, which is enhanced on a subsequent DWI. From just this brief explanation, it should be clear that retaining the services of a qualified legal professional is the prudent course when facing a first-, second- or third-time DWI offense in court. Our attorneys are always ready to assist those accused of DWI, drug DUI and breath test refusal.