Part Two: Trying the Case
So, once your office party/Friendsgiving/New Year’s Bash has come and gone, what comes next? Ideally, you did not drink and drive and are, at worst, nursing a nasty hangover and deciding how to explain certain embarrassing moments. If, however, you made a mistake and got arrested for driving while intoxicated (DWI), you have a summons to municipal court and a real journey ahead.
Trying the Case in Municipal Court
A case in the Municipal Court occurs very similarly to a case in the criminal court. Once you have arrived in the municipal court, you have a choice–you can either plead guilty to the charges, or go to trial. If the case goes to trial, there is discovery, motions to suppress, and other pre-trial actions which can be time-consuming and expensive. If you plead guilty, the penalty may be reduced, or certain charges dismissed, but there will still be substantial and serious penalties. It is important to contact a lawyer to discuss these options and find out what would be best for your particular circumstances. This is especially true if this is not your first offense.
If you decide to go to trial, you may be able to use pre-trial motions and discovery to strengthen your case or get the case dismissed altogether. In certain cases, the breath test results may be suppressed, which means that they cannot be admitted, including where there is evidence that the test was not properly calibrated, or where there were no reasonable grounds to perform the test. A motion to suppress may also be granted for a blood test. Likewise, at trial, a defendant has the right to cross-examine witnesses, including the police officer that made the arrest. If the case against the defendant is not proven “beyond a reasonable doubt,” the defendant will be found not guilty. State v. Kuropchak, 113 A.3d 1174, 1182 (N.J. 2015), citing State v. Kashi, 360 N.J. Super. 538, 544 (App. Div. 2003).
Appeal: Taking it to the Law Division
What happens if you’re convicted in Municipal Court? You may appeal the municipal court’s conviction or sentence to the Law Division. Kuropchak, supra, citing N.J. Court Rule 7:13-1 and 3:23-1. The Law Division handles the appeal “de novo,” meaning that the case is tried again, as if the municipal trial never occurred. Kuropchak, supra, citing State v. Johnson, 42 N.J. 146 (N.J. 1964). If you are arrested for a DUI or have been convicted of a DWI in municipal court, you should consult a lawyer to address any appeal rights and assist you with any and all procedural requirements.
Consequences and Penalties
If you are convicted of a DWI, the consequences can be serious. For a first offense, the penalty depends on the defendant’s blood alcohol concentration (BAC). If the defendant’s BAC is between 0.08% and 0.10%, the penalty is a fine between $250 and $400, between 12 and 48 hours in the Intoxicated Driver Resource Center, up to 30 days incarceration, and loss of driver’s license for three months. N.J.S.A. 39:4-50(a)(1)(i).
If the defendant’s BAC is 0.10% or above, or the defendant is found to be intoxicated on other substances, the penalty is a fine between $300 and $500, between 12 and 48 hours in the Intoxicated Driver Resource Center, potential incarceration up to 30 days, and a loss of license for a period of seven months to a year. N.J.S.A. 39:4-50(a)(1)(ii).
In either case, the court may order the installation of an ignition interlock device. N.J.S.A. 39:4-50(a)(1)(iii), P.L. 1999, c.417 (C.39:4-50.16 et al).
Your Second (or Third, or Fourth…) Time Around
What happens if this is a second or third offense or other subsequent DWI offense? If you have had a conviction for DWI before, even if it is in another jurisdiction, you may be a repeat offender. N.J.S.A. 39:4-50. If you have a previous conviction for refusing to submit to a breathalyzer, you may not be sentenced as a second-offense for a DWI. State v. Frye, 90 A.3d 1281, 1290 (N.J. 2014) citing Ciancaglini 10 A.3d 870 (N.J. 2011).
The New Jersey Appellate Division has recently found that even if you were previously convicted of a violation of a different subsection of the statute, you may be considered a second-time offender. State v. Wheatley, (2016). In that case, the court rejected a defendant’s claim that his previous conviction under subsection (g), which concerns violations committed in school zones, did not lead to a second-offense sentence for his conviction under subsection (a). Id.
For a second offense, the penalty can be a fine between $500 and $1000, 30 days community service, 48 hours to 90 days in jail, and a loss of license for two years. After two years, the defendant will have to re-apply for a driver’s license. An ignition interlock device is also required. N.J.S.A. 39:4-50(a)(2).
For a third offense, and every offense afterward, the penalty can be a fine of $1,000, incarceration for up to 180 days, and a loss of license for ten years. The period of incarceration may be reduced up to 90 days for time spent in rehabilitation.
In addition, all penalties are higher when the DWI occurs on school property, within 1,000 feet of school property, or through a school crossing. N.J.S.A. 39:4-50(g). Under those conditions, the penalty for the first offense is a fine of $500 to $800, up to sixty days in jail, and a license suspension for one to two years. For a second offense, the penalty is a fine of $1,000 to $2,000, sixty days community service, imprisonment (or community service if the court finds that appropriate) for up to 180 days (with 4 consecutive days required), and four years license suspension. The third violation has a penalty of a $2,000 fine, 180 days incarceration (with a possible 90 days deducted for time spent in an inpatient rehabilitation program), and a 20 year license suspension. N.J.S.A. 39:4-50.
Trying a DWI case alone can be overwhelming. If you or a family member have been charged with a DWI, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com