The Impact of a Prior DWI Conviction(s)

If you have been convicted of DWI anywhere, then you may be facing enhanced penalties for loss of license, fines, and incarceration. If you have a prior conviction or convictions from another State, these “priors” may be counted against you for sentencing purposes in New Jersey. The conviction must be “of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact.” If the conviction satisfies this standard, then the prior conviction “shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than .08%.” Depending on the circumstances of your out of state prior convictions, there may be arguments to avoid enhanced penalties in New Jersey if you are convicted on the current charge.

One of the best tools that a DWI defense lawyer has is called the ten-year step down provisions. For multiple DWI offenders the statute provides;

A person who has been convicted of a previous violation of this section need not be charged as a second or a subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or a subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

This provision basically provides that if there is a ten-year gap between DWI offenses, then the DWI driver will be sentenced as a first time offender. A driver can only use the ten-year step down break one time. The ten-year step down does not apply to a third time DWI offense.

Much confusion occurs with older multiple DWI convictions. A case called State v. Burroughs, 349 N.J. Super. 225 (App. Div. 2002) is the current law on this sentencing issue. The court in the Burroughs case held that although more than ten years elapsed between Burroughs first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses, he must now be treated as a third offender. Burroughs had convictions in 1982, 1998 and then in 2000.

The court further stated: “But once having been granted such leniency, the defendant has no vested right to continued step-down status where he commits a subsequent drunk driving offense. The earlier offense is not forgiven. Having been granted leniency by virtue of the infraction-free lapse of time between the two earlier violations, the offender has received his reward for good conduct and is entitled to no further consideration.” Id. at 227.

A fourth or greater conviction will always be treated as a third conviction for sentencing purposes, regardless of dates of conviction. For example, convictions from 1985, 1986 and 1990, and now a charge in 2006 would result in potential fourth offender status, with a pending penalty of 10 years loss of New Jersey driving privileges, fines, surcharges, and 180 days in county jail, 90 of which are mandatory in jail, and credit for up to 90 days in an inpatient alcohol or drug rehabilitation facility.

As part of any DWI defense, prior convictions should be reviewed to see if any of the prior cases can be reopened and challenged to determine if the convictions can be overturned. If they can, a third offense may then be treated as a second offense, or a second offense may be treated as a first offense. This process is called post-conviction relief.