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...and How Does "Subsequent Charges Following a DWI Conviction" Affect My DWI Charges

 

Instead of a dry, boring article, the following is an excerpt from a recent interview
with Attorney Leckerman on the subject.

Interviewer: Let’s start by explaining what will happen if you’re convicted of a DWI in New Jersey. How much worse will it get for you if you’re ever facing a second DWI charge or maybe even another crime that has nothing to do with DWI? Does it really put you in a really bad light, going forward, no matter what happens to you?

In New Jersey, After One DWI Conviction All Penalties for Future Charges Are Doubled

Leckerman: Once you have a first offense DWI conviction, then all the penalties are essentially doubled. The financial penalties will go up to a minimum of between $800.00 and $1000, or more. You’re going to be hit with additional surcharges of $3000. Your license is going to be suspended almost twice as long, as in the first DWI.

A Second Offense: Fines, Loss of License, Ignition Interlock Device, Community Service and Potential Jail Sentence

For a second offense, you’re looking at a 2-year loss of license as opposed to a 7- to 12-month loss of license, for the first offense. You’re going to get a mandatory order for placement of an ignition interlock device on your vehicle, which is going to be for much longer than it was the first time around.

For a second offense, it’s going to be a minimum three years, as opposed to the 13-month order for the first offense and it could be as long as five years, for a second offense, that you have to have an ignition interlock device on your vehicle. You have to perform community service, which you don’t necessarily have to do on the first offense.

You’re going to potentially have to go to jail, which is not a requirement for the first offense. There’s a minimum 48 hours in jail, which can possibly be served in an IDRC program, but some judges will sentence people to jail on a second offense, if you are convicted.

Should You Go to Trial? The Penalties for a Guilty Verdict and a Plea Bargain of Guilty Are Usually Equal

In my opinion, there are very few reasons to plead guilty to a second offense or even a first offense or a third DWI offense in New Jersey. The reason I say this is because, if there aren’t aggravating circumstances for the particular case, the penalties are rarely greater for you if you’re found guilty after trial than if you just went in and pled guilty, without fighting the case.

Interviewer: There’s no penalty for fighting, essentially.

Leckerman: There can be a penalty for fighting in certain circumstances. If you get a judge who is going to penalize a defendant for taking a case to trial and losing, then, certainly, your jail sentence on a second offense may be much greater than if you pled guilty. You have the constitutional right to go to trial and not be penalized for exercising your constitutional rights.

However, some judges don’t necessarily follow the dictates of the Constitution and don’t respect our due process right to take a case to trial. Sometimes, there are prosecutors who will try to seek a greater amount of a penalty, including jail time, if you go to trial.

Frivolous Defense Tactics Will Not Bode Well for a Successful Outcome

Other prosecutors won’t try to get a greater penalty if you lose at trial unless they believe that you took the case to trial with a frivolous defense. If, in their opinion, you didn’t really have a good defense to the charges, then they’re going to essentially punish you for exercising your constitutional rights and it shouldn’t be that way, in any case.

The New Jersey Court System Has to Legally Justify Harsh Penalties

The good thing about New Jersey is there has to be some justification on the record to put somebody in jail or increase a license suspension. A judge can’t just simply throw somebody in jail for a longer period of time or increase the license suspension without placing on the record that there were aggravating circumstances that outweighed the mitigating circumstances in the case.

After a DWI Conviction: Can You Expect Fair Treatment From the Courts on Future Charges?

Interviewer: How can you expect to be treated by the courts? If you have been convicted once and you’re in court, are the judges and the prosecutors going to be less lenient with you just because it’s not your first time?

Leckerman: Technically, they shouldn’t give you an increased sentence simply because you are there for a second or third offense. This is because the penalties are set up to punish somebody already for being a second-time violator or third-time violator. They increased simply because you had a previous conviction.

Is It Likely You Will Face the Same Judge on Future Charges?

I rarely have clients who will have to go in front of a judge for a second or third DWI, when that previous conviction was in the same court. If that does occur, I believe, depending on the circumstances, there is a possible conflict of interest for the court. In those circumstances, I will make a motion for the judge to recuse himself and we can have the case heard in a different court.

Now, if the judge already knows that the person has been found guilty of the DWI, of course, that creates prejudice in most people’s minds and then the question becomes, how fair of a trial can this client of mine get?

Aggravating Factors, Such as High BAC levels and Physical Altercations with the Police Can Lead to Harsher penalties

If the previous conviction was close in time, some judges will use that as an aggravating factor and sentence somebody more harshly than if years have elapsed. If there was an accident, then, that’s an aggravating factor. There are aggravating factors such as being hostile to the police officers or physically combative.

If that person destroyed some property in the police car or at the station, that can be an aggravating factor. The actual blood-alcohol level, the BAC, can be an aggravating factor, if it is much higher than the 0.08% BAC minimum. If a person has a 0.30% BAC, then the judge may deem that to be an aggravating factor.

Interviewer: You said there’s a ‘mercy of the court’ but do you use it up on your first offense?

Leckerman: It really depends on the judge. There are some great judges who will absolutely respect the person’s right to take a case to trial and defend himself. I have rarely come across a judge who assesses “a trial penalty,” for my clients. Rarely, do I go into trial and really have nothing as far as a way of attacking the prosecutor’s case.

By Kevin Leckerman

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