As a local criminal defense attorney with a substantial DWI [driving while intoxicated] practice, I read with interest the recent article by Kathy Chang entitled “Misconceptions abound about police, traffic laws.” Unfortunately, the article itself contains two significant “misconceptions” concerning drunk driving law in New Jersey that should be corrected.
“The law reads that if a person receives a DWI every 10 years, then a person can be charged with a first offense every time.”
This is incorrect. Although the law contains a ten-year “step-down provision,” N.J.S. 39:4-50(a)(3), a person may not use the same step down more than once. See State v. Burroughs, 349 N.J. Super. 225, 227 (App. Div.), cert den.174 N.J. 43 (2002). For example, if a person is convicted of DWI for the first time in 1984 and then again in 1995, he will be sentenced as a first offender for the 1995 offense because more than 10 years have elapsed between 1984 and 1995. But if he is convicted of another DWI offense in 2006, he will then be sentenced as a second offender for that offense, not as a first offender, because he is entitled to a “step-down” between 1995 and 2006, but can not use the step-down he received in 1995 a second time.
“If a person gets their first DWI in 1990 and second DWI in 1995, and another one in 2006, then that person in 2006 will be charged for their third DWI offense.”
This statement of the law is also incorrect. If a person is convicted of a DWI in 1990 and again in 1995, he will be sentenced as a second offender in 1995 because less than 10 years have elapsed between his first and second offenses. But if he is then convicted of DWI again in 2006, he will be sentenced as a second offender, not as a third offender. He is entitled to the benefit of the “step down provision” on his 2006 conviction because more than 10 years elapsed between 1995 and 2006.
Glenn D. Kassman, Esq.
Point Pleasant