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.