Third or Subsequent Offense DWI

March 18, 2021

New Jersey Court Upholds DWI Conviction Based on Observational Evidence

Not all DWI charges are based on a driver’s blood alcohol level at the time of the arrest. Instead, many DWI charges and convictions arise out of the fact that the arresting officer observed the defendant operating a vehicle while in an impaired state. Regardless of the nature of the evidence presented at trial, the prosecution must prove a defendant committed a DWI offense beyond a reasonable doubt, and if it cannot, the defendant should be found not guilty. In a recent opinion, a New Jersey court discussed the sufficiency of observational evidence in a matter in which it ultimately upheld the defendant’s conviction for a third offense DWI. If you are accused of a third or subsequent DWI crime, it is smart to speak to a New Jersey DWI defense lawyer to assess your options.

The Defendant’s Arrest

It is reported that the arresting officer received a call regarding a car that was parked in the middle of an intersection. When he arrived at the scene, he observed the defendant sitting in the driver’s seat of a parked car. The defendant was playing very loud music, was slumped over, and had a small child in the back of the car. When the officer spoke with the defendant, he noticed his speech was slurred, and he had a half-empty bottle of liquor in the counsel.

Allegedly, the defendant agreed to submit to field sobriety testing. The officer noted that the defendant had an odor of alcohol on his breath. The defendant was unable to perform the testing and was subsequently arrested and charged with multiple crimes, including third offense DWI. He was convicted, after which he appealed, arguing in part that the State failed to produce sufficient evidence to sustain a DWI conviction based on the observational prong of the statute. Upon review, the appellate court affirmed the defendant’s conviction. Continue reading

February 19, 2021

Court Discusses the Right to Choose Counsel in New Jersey DWI Cases

by Jonathan F. Marshall

In New Jersey, a conviction for a third DWI offense can carry significant penalties, including substantial fines and license suspensions lasting several years. Therefore, it is wise for anyone charged with a third DWI crime to exercise the right to retain a skilled lawyer who will present a compelling defense. The right to be represented by counsel of one’s choice is not an absolute privilege, however, and in some instances, it may be denied due to competing interests, as demonstrated in a recent New Jersey ruling. If you are accused of a third DWI crime, it is in your best interest to retain a New Jersey DWI defense lawyer as soon as possible to help you fight to protect your rights.

History of the Case

It is reported that the police responded to a report of a car accident. When they arrived at the scene, they saw tire marks on a driveway and grass, a tree that had been run over, and a license plate. They traced the license plate to the defendant and went to her address, where they found her sitting in her vehicle, with the engine running. When they spoke with her, they noted she smelled heavily of alcohol. She was unable to perform field sobriety testing and was arrested for DWI, which was her third offense, and other crimes.

Allegedly, the defendant asked to be represented by a public defender due to the fact that she had no income. Her request was granted, and a public defender was assigned. The defendant did not approve of the attorney, however, or the three subsequent attorneys she was assigned. Her case was delayed for over five months due to her attorney issues, and at her hearing, she requested an additional adjournment so she could retain private counsel. Her request was denied, and she was convicted, after which she appealed. Continue reading

January 21, 2021

New Jersey Court Discusses Jurisdiction Over DWI Cases

by Jonathan F. Marshall

In New Jersey, DWI cases typically proceed in municipal court. In some instances, though, a DWI matter will fall under the jurisdiction of the Superior Court, like in cases in which the defendant causes an accident that results in serious injuries. Recently, a New Jersey court set forth an opinion addressing the discrete issue of whether a DWI case in which the defendant is injured in an accident he caused should proceed in front of the Superior Court, in a case in which the defendant pleaded guilty to a third offense DWI. If you are accused of a DWI crime, it is advisable to speak to a seasoned New Jersey DWI defense attorney to assess your rights.

Procedural History of the Case

It is reported that in 2007, the defendant entered a guilty plea to the charge of DWI as a subsequent offender, which arose out of a one-car accident. The defendant, who sustained injuries in the accident, was driving alone. The court sentenced him to a 10-year license suspension to run consecutively to a 10-year suspension that began in 2006. In 2018, the defendant moved to vacate his guilty plea. The municipal court granted the motion but determined that in accordance with a New Jersey statute, the Superior Court had the sole right to exercise jurisdiction over the matter. The State appealed, and the court reinstated the defendant’s guilty plea. The defendant then appealed, arguing the lower courts misapplied the applicable law.

Jurisdiction Over DWI Cases

On appeal, the appellate court explained that the plain language of the relevant law clearly stated that DWI-related accidents involving serious injuries fall within the jurisdiction of the Superior Court, not the municipal court. The appellate court noted, though, that the statute did not provide any guidance as to whether it applied to the defendant’s DWI charge, as he was the only person injured in the crash and was not charged with any offense that would invoke the jurisdiction of the Superior Court. Continue reading

November 18, 2020

New Jersey Court Discusses Grounds for Vacating a DWI Conviction

by Jonathan F. Marshall

While all DWI charges should be regarded as serious, a charge for a third or subsequent DWI offense can result in significant penalties, including license suspension and jail time. Once a person is convicted of DWI however, trying to get a conviction reversed can be an extremely difficult task. Recently, a New Jersey court discussed the ground for vacating a third DWI conviction in a ruling issued in a matter in which the defendant alleged numerous procedural errors were committed during the investigation of his alleged crime. If you are a New Jersey resident currently facing DWI charges, it is advisable to meet with a dedicated New Jersey DWI defense attorney to assess your options.

The Defendant’s Arrest

It is reported that the defendant was stopped by a police officer for driving erratically. When the officer approached the defendant, he noticed he appeared to be intoxicated, in that he smelled like alcohol and had slurred speech and bloodshot eyes. The officer asked the defendant to submit to field sobriety tests, which the defendant was unable to complete. The defendant was then transported to the police station for a breath test, but the breathalyzer machine was not working. Allegedly, he was then transferred to a second barracks where he underwent the test, which revealed his BAC to be 0.15%. He was charged with DWI, which was his third offense. He moved to have the results of his breath test deemed inadmissible, which the court denied. He then filed a conditional guilty plea and, after his sentencing hearing, appealed.

Grounds for Vacating a DWI Conviction

Under law, if a driver moves to appeal a DWI conviction in New Jersey issued by a municipal court, the Law Division will make its own factual findings and conclusions of law while deferring to the lower court’s credibility findings. Then, if the Law Division’s findings are appealed to the Superior Court, the court will merely review whether there is adequate credible evidence of the record to support the lower court findings and will not overturn those findings absent a manifest error.

May 10, 2020

New Jersey Court Discusses Prior Out of State DWI Convictions for Sentencing Purposes

by Jonathan F. Marshall

Under New Jersey law, a person convicted of a second or subsequent DWI may be subject to additional penalties. Further, a defendant may face additional penalties if he or she was previously convicted of a DWI or a similar offense in a state other than New Jersey. Recently, a New Jersey appellate court addressed what constitutes a similar offense for purposes of subsequent convictions in a case in which the defendant argued that a prior conviction for drunk driving in New York should not count towards his penalty assessment. If you are accused of a second or subsequent DWI offense in New Jersey, it is advisable to consult a seasoned New Jersey DWI defense attorney to talk about your potential defenses.

Facts of the Case

It is reported that the defendant was charged with and convicted of committing a DWI offense. The defendant had a prior New Jersey DWI conviction as well as a conviction for driving while his ability was impaired in New York. Thus, the court considered the defendant as a third time DWI offender and sentenced the defendant to a 180 day prison sentence and a ten-year license suspension. The defendant appealed, arguing that the trial court erred in deeming his New York conviction a violation of a substantially similar law. On appeal, the court affirmed.

Violation of a Substantially Similar Nature

Under New Jersey’s DWI law, a conviction for violating a law in another jurisdiction that is substantially similar in nature to New Jersey’s DWI law is considered a prior conviction for New Jersey DWI purposes, unless the defendant produces clear and convincing evidence that establishes that the conviction in the other jurisdiction was based solely on a violation of a law involving a blood alcohol concentration of less than .08%. Thus, New Jersey courts have held that a New York driving while ability is impaired conviction is substantially similar to driving under the influence pursuant to New Jersey law for the purposes of sentence enhancement, unless the defendant can prove otherwise. Continue reading

January 20, 2020

New Jersey Court Reverses DWI Conviction Due to Admission of Hearsay Evidence

by Jonathan F. Marshall

In many instances in which a defendant is charged with a DWI offense, the key disputed issue is whether the defendant actually operated a vehicle while intoxicated. Thus, in many cases, the prosecution will seek to introduce circumstantial evidence that suggests the defendant was driving prior to his or her arrest. Any court considering what evidence should be admitted must conduct a balancing test between whether the evidence is relevant or unduly prejudicial. However, the introduction of inappropriate evidence may constitute a violation of the defendant’s rights. This was evidenced in a recent case in which the court overturned a verdict convicting the defendant of multiple DWI related crimes due to the admission of inappropriate hearsay evidence. If you are a resident of New Jersey currently faced with DWI charges, it is important to retain an assertive New Jersey DWI defense attorney who will fight to protect your rights.

The Defendant’s Charges and Convictions

It is reported that the defendant was charged with driving during a license suspension for a second or subsequent DWI, DWI, and numerous other traffic offenses. The main issue at trial was whether the defendant actually operated the vehicle prior to his arrest. The defendant presented testimony from his wife that she was driving and left the defendant by the side of the road after an argument. Conversely, the State presented testimony from the arresting officer that he was dispatched after a 911 call reporting that an intoxicated male had crashed his vehicle and was stuck on the side of the road.

Following the trial, the defendant was convicted of all counts and sentenced to 365 days in jail for the crime of driving with a suspended license and 180 days in jail for the DWI. The defendant appealed, arguing that the trial court erred in admitting hearsay testimony regarding the 911 call. Upon review, the appellate court agreed, finding the testimony was hearsay and unduly prejudicial, and reversed the defendant’s convictions. Continue reading

December 26, 2019

New Jersey Court Discusses Standard for Granting a Petition to Withdraw an Uncounseled Guilty Plea in a DWI Case

by Jonathan F. Marshall

Multiple DWI convictions can result in severe consequences, including the loss of a driver’s license. Thus, it is prudent for anyone charged with DWI to consult an attorney to discuss which defenses may be available to help avoid a conviction or reduce any penalties. This was demonstrated in a recent case, in which a defendant sought to appeal a prior DWI conviction that was entered following a hearing during which he was not represented by counsel. If you were recently charged with a DWI offense in New Jersey, a trusted New Jersey DWI defense attorney can discuss the steps that you can take to protect your rights.

Facts of the Underlying Case

The defendant was arrested and charged with DWI in 2003. He appeared before the court without counsel and entered a guilty plea. During the hearing, the judge advised the defendant of the consequences of entering a guilty plea and explained the impact of multiple convictions. The judge did not advise the defendant, however, that he had the right to request that the court appoint an attorney to defend him if he could not afford to retain counsel. The defendant entered a guilty plea, regardless. The defendant was subsequently charged with and convicted of two other DWI crimes. For his third offense, he received a 10-year license suspension.

In 2016, the defendant was arrested for operating a vehicle with a license that was suspended for a second or subsequent DWI conviction. The defendant was found guilty. Prior to sentencing, he filed a motion to withdraw his 2003 guilty plea. The municipal court denied the motion, and the defendant appealed. Following a trial before the Law Division, the defendant’s appeal was denied, and he was sentenced to 364 days in prison. He then appealed the denial of his appeal and his sentence.

March 5, 2019

Ex-Pro Wrestler Charged with Sixth DWI in New Jersey

by Jonathan F. Marshall

You probably already know that being convicted of driving while intoxicated (DWI) in New Jersey can seriously derail almost every aspect of your life. If you or someone you love is facing DWI charges, you should immediately contact a trusted and experienced New Jersey DWI attorney. With years of experience, we understand how to fight these charges and minimize the chances of a conviction. We also understand this is an extremely stressful time for you, which is why we are committed to handling this matter with the utmost sensitivity and urgency.

An ex-pro wrestler by the name of “Sunny” was recently hit with her sixth drunk driving charge. Officers say 46-year-old Tamara Sytch, who is in the World Wrestling Hall of Fame, had stopped her vehicle in Seaside Heights on Saturday evening after she drove in the wrong direction on a one-way street. She was charged with a DWI and police soon discovered that she also had a suspended driver’s license and two other active warrants. Sytch was released from jail in October after serving eight months for multiple DWI offenses.

September 29, 2014

Warren County, NJ, Driver with 4 DUI Convictions Arrested for Driving on Suspended License

by Jonathan F. Marshall

Although many people who find themselves arrested and charged with a drunken driving offense may generally be lumped into the first-and-old-time category, there is a portion of the driving public, albeit a smaller group, who end up with second- and third-time offenses to deal with. When it comes to DWI and drug DUI arrests, those with multiple convictions definitely have a harder time of it in terms of sentencing and penalties.

Sad to say, but those motorists who find themselves the recipients of frequent drunken driving summonses can often end up with onerous monetary penalties and significant jail time if convicted of a third or subsequent DWI charge. Most drivers, as well as the public at large, find it surprising that those with a couple DWIs under their belt may actually tempt fate and drive a motor vehicle while under the influence of alcohol, prescription drugs or an illegal substance (CDS); however, regardless of why a person ends up arrested for DWI-DUI after already being convicted in the past of similar charges, the bottom line is that a competent drunk driving defense is all the more important for such individuals.

As Garden State DWI-DUI defense attorneys, my colleagues and I make it our business to defend those people who feel they were unjustly accused, or that the potential penalties following another conviction would be too much to bear. Whether my legal staff handles a first-time DWI case or one involving a second- or third-time charge, we know the importance of thorough preparation when fighting for our clients. In fact, it is safe to say that most individuals facing potentially heavy fines and other penalties feel they need a lawyer skilled in drunk driving defense to avoid serious consequences.
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September 25, 2014

FAQ: NJ Drunk Driving Arrests and the Consequences of a DWI Conviction — Part Five

by Jonathan F. Marshall

For those individuals who find themselves on the wrong side of the law, that is, a motorist who has been arrested for a drunken driving offense, the immediate issue at hand is often trying to locate a competent DWI-DUI attorney to represent oneself against the local municipal prosecutor who is pressing the charges against him. To put it in simple terms, if your turn in the DWI barrel has come, now is the time for action, not later.

As Garden State drunk driving attorneys, my colleagues and I have a very good track record of defending motorists who have been charged with some kind of impaired driving. Whether these accusations involve the consumption of alcohol or the use of legal narcotic medications, or even illegal substances, the need for a qualified legal professional is always a priority. Let it be said at this juncture that my firm in no way condones any kind of impaired operation of a motor vehicle, be it a car, commercial truck, motorcycle or watercraft. From our point of view, the best defense is a good offense, and the best way to avoid a DWI or DUI is to avoid drinking or taking drugs any time one expects to be driving on New Jersey roadways.

As recognized experts in the field, my legal team gets a lot of questions from prospective clients who are just beginning to learn about the intricacies of DWI law. In the interests of edifying our readers, we feel that learning something now about drunk driving defense may come in handy in the future, especially if someone finds himself in a difficult situation involving a drunk driving arrest.
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