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.