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September 17, 2010
I am presently defending a client who is charged with his fourth DWI offense. His third offense occurred in 1992. As a third or subsequent driving while intoxicated defendant, he would normally be facing a mandatory 180 county jail sentence. The facts of the DWI arrest are fairly straight forward. However, he is also charged with a refusal offense, making matters worse.
In many instances, avoiding jail time is the most important consideration for an individual who is facing similar charges. Therefore, one of the first task I take on when representing a client charged with a third, fourth, or fifth DWI offense is to see if there is a way to avoid jail time, EVEN if there is ultimately a conviction.
Well, you might be wondering how this is accomplished if jail is mandatory for a third or subsequent. First, a NJ DWI lawyer who understands driving while intoxicated laws will see if it is possible to challenge the prior convictions. In some instances, a conviction can be completely vacated, meaning washed away. More frequently, counsel may be able to obtain an Order from the prior court stating that the prior conviction can not be used to enhance the custodial portion of a subsequent offense. In that case, the subsequent court could only impose jail time up to the maximum sentence for the prior conviction. For example, if you were facing a third conviction, and I obtained an Order from the court of first conviction, then you could only be sentenced to a maximum of 90 days in jail (the maximum for a second offender). However, since the custodial portion of a second offense is not mandatory, the court does not have to send you to jail. In just about every case that I have handled and obtained similar relief, the sentencing court for the subsequent conviction has not sentenced my client to jail.
REMEMBER, this relief does not apply to the administrative penalties of the subsequent offense UNLESS the prior conviction is COMPLETELY VACATED. This means that as a third offender, you may not go to jail, but you would still lose your license for ten years. In order to be treated as a full step lower than the present offense the defendant must either have ten years between the present offense and the prior, OR the prior conviction must be completely vacated.
Now here is the complicated part. In my case, my client was charged as a fourth offender. I went to back to the first court and successfully argued that the conviction could not be used to enhance the custodial portion of a subsequent offense. However, this alone was not good enough. Why? Because he would only get the benefit of being treated as one offense lower for jail purposes. This means he would be sentenced as a third. This means a mandatory jail sentence of 180 days.
But….there were ten years between the third and the fourth. The statute, as it applies to the ten-year step down, does not address fourth offenders. It only mentions second an thirds. In comes State v Conroy. In this case, the court makes clear that a fourth offender does get the benefit of the step-down even if the statute does not explicitly say so. Therefore, in my case, my client is now a third offender for sentencing purposes. Ordinarily, this would not make a difference, still mandatory six months. But since I had my “Laurick” Order, the court may not sentence him to more than 90 days, and jail is not mandatory. As a result, and with some good lawyering, he will most likely avoid jail all together. He is still facing the 10 year loss of license.
Given the fact of the underlying DWI offense, he is very pleased with the result. I can be reached for more information on this procedure and DWI arrest in general.