The penalties for a third offense of Driving While Intoxicated under New Jersey’s DWI Statute, N.J.S.A. 39:4-50, are substantial and include 180 days of jail. While 90 days of the term of incarceration may be served in an inpatient rehabilitation facility with the approval of the sentencing Court, 90 days must be served in prison and most County Sheriff’s Offices have a blanket prohibition against house arrest, weekends, or anything other than flat time of incarceration in a County Jail. Given the significance of the sentence, what then can be done to defend a third DWI offense where an individual is indefensibly guilty?

The most common defense strategy for avoiding incarceration is a collateral attack on the first two DWI convictions. Existing case law supports the proposition that a prior DWI conviction cannot be utilized for purposes of incarceration absent a full and knowing guilty plea in all prior proceedings. This idea is frequently utilized to avoid use of a prior conviction which was based on a plea taken from an unrepresented individual; the underlying rationale is that the defendant was not afforded the full benefit and knowledge of his potential defenses at the time of the plea and that it would therefore be fundamentally unfair to send him to jail based on such a prior plea. Similarly, a conviction based on a plea which was taken without adequate instruction to a defendant of his rights and a clear and unequivocal factual basis for the prior guilty plea should not be counted for purposes of incarceration as a third offender. Where one of these principals is applied by a Court, the typical ruling is that the defendant shall be subject to all other penalties of a Third Offense other than the incarceration.

In defending a Third Offense for DWI where an individual has no real defense substantively to the charge, the proper course of action is therefore to conduct a thorough investigation into the facts and circumstances surrounding the prior convictions. While the law is certainly becoming more stringent with respect to the evidence necessary to support invocation of Laurick; however, it is not unheard of for a municipal court to accept the representations of a defendant under oath as the factual basis for invocation of this case law. The more common scenario is, however, for counsel to request and obtain the transcripts from the prior proceedings to corroborate that the defendant was unrepresented and/or that the plea was lacking in the prior proceedings. Prior transcripts are sometimes unavailable as prior convictions are often very old and this can provide a fertile opportunity for a defense in and of itself for an individual (i.e. how can the state refute what the defendant is claiming regarding the prior plea where the transcripts are unavailable). It is important to remember that the key consideration here is the ability to create an issue(s) which will allow for a downward departure from the standard sentence as prosecutors in New Jersey are absolutely forbidden from plea bargaining DWI cases; in other words, there must be some bona fide legal basis or argument to support a departure from the standard penalties. A thorough investigation into the prior convictions can yield such an issue in a Third DWI case. 

The question which invariably follows when the aforesaid law is explained to an individual facing a Third DWI charge is: What are my chances of availing myself of one of these defenses?   I have found that the best way to respond to this question is to give the illustration of a real life case I handled for an individual we will refer to as DV. DV was charged with a third DWI and the question arose as to whether it should actually be treated as a Third or Second Offense based on the fact his Second Offense was treated as a First Offense at the time of the related plea. DV’s second conviction came over ten (10) years after the first offense and N.J.S.A. 39:4-50 provides that a prior conviction shall not be counted when a 10 year gap between convictions has accrued. DV was therefore able to have his second offense treated as a first rather than a second; so how then would the Third be treated? Unfortunately, DV hired an attorney who did not have a good grasp of the law nor the desire to undertake the effort to fully defend the client and, as a result, the man entered a plea to a third DWI and was committed to jail for 180 days since New Jersey’s Supreme Court held in State v. Burroughs 793 A.2d 137 (N.J. Super A.D. 2002)

that the 10 year drop off was only available one time, holding that a third offense was actually a third offense irrespective of the time gap between convictions. This has given rise to the coined phrase that “a third is a third”. The problem with the plea to the third offense was the fact that the first plea was improperly taken by the Court and a transcript of the proceeding demonstrated that the law was violated in terms of failure to enter a knowing and intelligent plea. 

Our initial effort for DV was to file an immediate application for post-conviction relief with the original trial judge but this was unsuccessful as the Court simply did not understand the importance of the fact that we were not attempting to invalidate the prior conviction based on a 10 year gap but rather based on an improper plea having been taken at the time of the first conviction. On Appeal to the Superior Court, our efforts proved successful and the Municipal Court Judge was reversed. While our client had served approximately 45 days in jail as of the date of the ruling, as we did not become involved in the case until he was already in jail, he was able to avoid over four months of incarceration simply by our undertaking the effort which DV deserved. The client has since turned his life around, stopped drinking, and can only be viewed as extremely fortunate that no one was ever injured by his conduct.

I often provide the story of DV to individuals charged with a third offense as it bespeaks of the fact that all hope may not be lost for an individual interested in turning his life around short of going to jail for 180 days.   Competent counsel has several avenues to avoid the prior convictions. An individual charged with his third dwi should certainly take advantage of these opportunities as a flat term of incarceration is going to have an overwhelming impact on his or her life.

The Horizontal Gaze Nystagmus (HGN) Test is a fairly new field sobriety test in New Jersey drinking and driving cases. This is one of the field sobriety tests law enforcement officers use when conducting DWI traffic stops. If the breathalyzer or blood test results are not conclusive, the State will attempt to use these field sobriety results to prove intoxication. In State v. Maida 332 NJ Super 564 (Law Div. 2000), the court held that HGN testing is generally accepted in the relevant scientific community. However, absent a similar determination by an Appellate Court or the New Jersey Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly-devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. This issue went to the Appellate Division in the case of State v. Doriguzzi 334 NJ Super 530 (2000) where the Appellate Division declined to take judicial notice of the HGN tests. The court held that HGN testing is scientific in nature and must be supported by expert testimony.

Police are generally required to conduct Field Sobriety Tests before issuing a summons for driving while intoxicated or driving under the influence. These physical and psychological tests are intended to provide the police with information necessary to determine whether an individual is under the influence of alcohol or drugs. The tests are also necessary because a police officer must possess probable cause to make an arrest and unless he has portable breath test equipment in his vehicle, field sobriety tests (also referred to as psycho-physical testing) are ordinarily the only basis for establishing probable cause for an arrest. Additionally, the tests provide evidence which the police can rely upon in attempting to prove a New Jersey DWI, DUI or Refusal case where blood alcohol concentration cannot be established through blood or breath tests.

There are many issues which may be raised with respect to administration and interpretation of field sobriety tests. Indeed, many times police officers fail to administer the tests properly thereby destroying the value of the tests. In other instances, the test results are misinterpreted or exaggerated, and this can also be brought out during the course of a case. If the weight of the field sobriety tests can be eliminated or significantly reduced, then the prosecutor may be unable to satisfy his burden of establishing probable cause for the drunk driving arrest and any DWI, DUI or Refusal charge issued.

The types of field sobriety tests administered in a given case vary, but the pool of tests which are utilized by police officers typically involves the following:

1. The Horizontal Gaze Nystagmus Test: this is a test wherein police attempt to determine whether probable cause exists to make an arrest based on how smoothly an individual’s eyes are tracking. For a more detailed discussion concerning the limited use of this test, readers are referred to New Jersey’s Appellate Division decision in State v. Doriguzzi, 334 N.J.Super. 530 (App.Div.2000).

2. Head Tilt Test

3. Finger to Nose Test

3. The One Leg Balance Test

4. Heal to Toe Test

5. Reciting the ABCs

6. Counting

The results of the field sobriety tests, as well as other circumstantial evidence, is recorded in the Police Report and Drinking and Driving Report contained in the arrest records (i.e. the discovery).