Experienced New Jersey DWI attorneys representing defendants charged with a third or subsequent Driving While Intoxicated offense know the challenges that these cases present. If convicted of a third or subsequent DWI offense in NJ, the law calls for a mandatory 180 day (6 month) jail sentence. This is in addition to the ten year loss of license which is also mandatory. Unfortunately, unlike first offense DWI, there are no step down provisions, unless 10 years has transpired since the last conviction. As a consequence, an attorney must make calculated and knowledgeable decision when choosing the most effective defense strategies. In some cases this means taking the case to trial. But sometimes this alone is not enough to protect the client, especially when one considers the very real possibility of prison.
In order to protect my clients to the fullest extent, I will revisit each one of the prior convictions and determine the following
- Was the defendant represented by counsel?
- Was the defendant advised of their right to counsel?
- Did the court illicit an adequate factual basis?
- If the defendant was represented, was counsel constitutionally adequate?
- Do all of the prior offenses count as prior offenses for enhancement purposes, i.e. certain out of state convictions?
- Any other procedural or substantive legal issue that may negate a prior conviction?
Typically prior convictions are attacked via a Post-Conviction Relief Application. The type of relief that may result depends upon the nature of the defects discovered in the prior proceedings. In some circumstances, a successful motion will completely negate the prior convictions, thus automatically turning the present charge from a third to a second or a fourth to a third. Jail is not mandatory for a second offense, and a third in conjunction with a 10 year step down can also result in a second. There may be other combinations that further reduce possible penalties.
In other cases, where a defendant was unrepresented by counsel in the prior offense, I may be able to make what is called a Laurick Application. Although a successful Laurick Application will not vacate the previous conviction, it will order that the prior conviction can not be used to enhance the loss of liberty in connection with a subsequent offense. This means that the defendant may be subject to a 10 year loss of driving privileges, but not subject to the mandatory term of imprisonment.
Sometimes this argument is made in conjunction with others to cast the widest net possible. What ever the case me be, I take every conceivable step to reduce my client’s exposure to the harsh penalties they may be facing with a third or subsequent New Jersey DWI offense. If you need more information please call The Law Office of Todd Palumbo for a free consultation.