DUI Susupensions Do Not Call For Lenity

In State v. Rodriguez, five Defendants filed consolidated appeals after convictions of fourth degree operating a motor vehicle during suspensions for driving while intoxicated, N.J.S.A. 2C:40-26. The Defendants had all pled guilty to driving while suspended for driving under the influence, N.J.S.A. 39:4-50, were seeking to serve their sentences at night or on weekends and the judge agreed, giving two of them night sentences and the other three received weekend only sentences. The Appellate Division ruled that the sentences meted out were within the court’s discretion but that the 180 day noncontiguous sentence had to be served in blocks of 24 hours each to qualify for a “day served”. The Appellate Division’s decision included the fact that N.J.S.A. 2C:40-26(c) does not specify that the 180 days need be served consecutively, that there is no reduction in the total term of confinement and there was an effort to allow some lenity as long as there was no reduction in the deterrent effect of the sentence. The Supreme Court of New Jersey granted the State’s petition for higher appeal, 234 N.J. 314 (2018), as to whether sentences could be served intermittently and ultimately held that one sentenced to a statutory minimum term of 180 days for operating a motor vehicle while suspended for DUI must serve the entire term consecutively. N.J.S.A. 2C:40-26(c) calls for a “fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.” The Supreme Court reasoned that when the Legislature wishes to leave discretion to the sentencing court, they normally indicate so clearly in the language of the statute. Further, the court indicated that the clear reference to a minimum 180 day period of parole ineligibility is a bar to serving the term intermittently. If you have been charged with DUI or driving while suspended for DWI, contact The Darling Law Firm, LLC now at 973-584-6200 to speak to a seasoned attorney and insure your rights are protected. For more information on driving while intoxicated or driving while suspended, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

One and One Make Two in DUI

James Dougherty was charged with violating N.J.S.A. 2C:40-26(b) for driving while suspended for a second or subsequent conviction or plea to driving while intoxicated (N.J.S.A. 39:4-50) or refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a)). Dougherty, seeking to avoid mandatory jail time, took the position that 2C:40-26(b) required conviction for two charges of refusing to submit to chemical breath testing or convictions for two charges of driving under the influence while Dougherty had only one conviction of each. In August 2015, the Defendant was convicted of DWI for a charge stemming from a February 23, 2009 arrest and was convicted of a refusal in November 2015, for a charge stemming from and arrest on February 4, 2009. While serving the seven month sentence for the refusal charge, the Defendant was stopped by the police while operating a motor vehicle. Dougherty was sentenced to a mandatory term of 180 days in jail, which term was stayed pending appeal. Defendant, relying on State v. Ciancaglini, 204 N.J. 597 (2011), argued that a "second or subsequent violation" under N.J.S.A. 2C:40-26(b) requires two convictions of the same predicate offense, rather than one of each. The Appellate Division found that State v. Ciancaglini does not address the issue head on. However, State v. Frye, 217 N.J. 566 (2014), reaffirms In re Bergwall, 85 N.J. 382 (1981), holding that a prior DUI does enhance a sentence for a refusal conviction. Additionally, the legislative history of the DUI statutes is centered upon the premise of discouraging driving under the influence by including ever increasing penalties for successive offenses. The Defendant's basic premise, from State v. Olivero, 221 N.J. 632, 639 (2015) and In re Estate of Fisher, 443 N.J. Super. 180, 190-195 (App. Div. 2015), that the word "or" should be interpreted as "or" rather than "either/or" is incorrect. When considered in the framework of the history and evolution of DWI laws, becoming ever stricter, there is no question as to the interpretation of the statute to include the word "either". The Appellate Division affirmed the defendant's conviction. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DUI Charges Follow Without Miranda After Accident

John Martens was charged with driving while intoxicated (DWI) (N.J.S.A. 39:4-50) after attempting to walk away from his burning vehicle. A passerby reported a vehicle fire and that the vehicle’s driver was attempting to leave the scene. The vehicle had damage to the driver’s side, flat tires and the airbags had been deployed. Investigating officers found only one person in the area who was swaying as he was walking away from the vehicle. The individual admitted he was the vehicle’s owner and that the vehicle struck the median. While speaking with Martens, officers noted his speech was slurred and eye movements were slow. They administered field sobriety tests (FSTs) and arrested Martens. Later, an Alcotest was administered and Marten’s blood alcohol content (BAC) was determined to be .17%. Martens was charged with DUI, reckless driving (N.J.S.A. 39:4-96); failure to maintain lanes (39:4-88); and abandoning a vehicle (N.J.S.A. 39:4-56.6). Among other motions, Martens sought to suppress statements to the officers prior to his arrest based on the fact that he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The suppression motion was denied and Martens entered a conditional guilty plea to driving under the influence, reserving his right to challenge the denial of the suppression motion on appeal. Martens was sentenced as a 3rd time offender and received a 180 day jail sentence, 10 year suspension of his driving privileges, 1 year ignition interlock requirement, 12 hours in the Intoxicated Driver Resource Center as well as fines and surcharges. In State v. John Martens, the New Jersey Superior Court, Law Division, denied Martens’ suppression motions, found him guilty based upon his plea in the municipal court and imposed the same sentence as the municipal court. Martens appealed to the N.J. Appellate Division. Miranda warnings must be administered when a custodial interrogation occurs wherein the suspect has been deprived of freedom in a significant way. State v. Timmendequas, 161 N.J. 515, 614 (1999). Police need not administer Miranda warnings during routine traffic stops. Berkemer v. McCarthy, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 31 (1984); State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005). Martens was asked a limited number of questions and was not subject to the equivalent of an arrest prior to being Mirandized by the officers following the FSTs. The decision of the N.J. Superior Court was affirmed. If you are charged with DUI, you are facing substantial penalties beginning with up to 1 year loss of driving privileges for a first offense up to a maximum of a 10 year loss of driving privileges and 180 days in jail for a third offense. In addition, you face the possibility of losing your job, certain professional licenses and the social stigma that comes with DUI. You need the assistance of an experience defense attorney and should not face these charges without one. For more information about driving while intoxicated, reckless driving, driving while suspended or other serious motor vehicle offenses in New Jersey visit DarlingFirm.com. This Blog is for informational purposes and not intended to replace the advice of an attorney.

Alternatives To Jail For Driving While Suspended For Multiple DUI Charges?

Driving while suspended for a second or subsequent driving under the influence (DUI) (N.J.S.A. 39:4-50) charge in New Jersey now carries a 180 day mandatory minimum jail term. Since N.J.S.A. 2C:40-26(b) was enacted on August 1, 2011, drivers sentenced to the mandatory minimum 180 days in jail without parole have been seeking alternative sentences. Under N.J.S.A. 2C:40-26(b), it is a fourth-degree crime to operate a motor vehicle during a period of license suspension for a second or subsequent driving while intoxicated (DWI) conviction or refusal to submit to chemical breath testing in violation of N.J.S.A. 39:4-50.2. In State v. French, 437 N.J. Super 333 (App. Div. 2014) , the trial court sentenced French to 180 days in jail, but allowed for up to 90 days of the sentence to be served in an inpatient treatment facility. The NJ Appellate Division held that sentences other that incarceration were not what the Legislature contemplated in enacting the statute and refused to find opportunity for flexibility in sentencing. In State v. Harris, John D. Harris, III, was sentenced to 180 days but allowed to serve his sentence on the Home Electronic Detention System (HEDS) program. The State appealed the sentence and the NJ Appellate Division upheld the courts finding in French finding that the Legislative intent of N.J.S.A. 2C:40-26(b) was to protect the public from those who would continue to drive after multiple DUI convictions. Although there is likely to be further litigation regarding other alternatives to incarceration, including diversionary programs, for driving while suspended for DWI the present state of the law is that you will serve 180 days in jail for this offense. If you are facing charges of DUI, DWI or driving while suspended for these charges you are facing significant periods of license suspension and the possibility of jail. It is critical that you obtain experienced criminal defense counsel to protect your rights. For more information about DUI, DWI, driving while under the influence of drugs (DUID), driving while suspended for DUI, controlled dangerous substances (CDS) in a motor vehicle or other serious traffic related charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Jail Sentence For Driving Without A License

Armando Carreon was sentenced to both a custodial term and fined for driving without a license (N.J.S.A. 39:3-10). Carreon was initially charged with failure to obey a stop sign (N.J.S.A. 39:4-144) and driving without a license and pled guilty to driving without a license. At sentencing, the municipal court judge found this to be Defendant's third offense for the same infraction and imposed 10 days in jail. The Defendant sought post conviction relief and the Law Division rejected the Defendant's argument with regard to the statutory mandate of a fine or incarceration but not both under N.J.S.A. 39:3-10 and Carreon appealed. The NJ Appellate division reversed as the statute allows for "…a fine not exceeding $500 or imprisonment in the county jail for not more than 60 days, but if that person has never been licensed to drive in this State or any other jurisdiction, he shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days." The appellate judges reasoned that the statute was amended to provide a more harsh penalty for never-licensed drivers and reserving judicial discretion for the harsher option of imprisonment in both situations. Further, in reversing and remanding the matter, the appellate judges held that those sentenced under this statute would be subject to a fine or imprisonment but not both. Driving without a license in NJ carries serious penalties and should not be taken lightly. If you are charged driving without a license in NJ you should seek an experienced attorney immediately to protect your rights. For more information about traffic offenses, driving without a license, DUI, CDS in a motor vehicle or other municipal court charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.

Driving While Suspended For DUI Without the DUI?

In deciding State v. Suzanne Sylvester, the court held that driving while suspended for a second or subsequent driving under the influence (DUI) charge under N.J.S.A. 2C:40-26b is a 4th degree crime even in the event the underlying DUI suspension is later vacated. Sylvester was convicted in the Somerset County Superior Court of N.J.S.A. 2C:40-26b and sentenced to a 3 year probationary term with a mandatory minimum incarceration of 180 days without parole. Sylvester had been convicted of DUI in 1991, 1992 and in Mendham Municipal Court in 2011. It was during the suspension for the 2011 DUI when the defendant was charged with driving while suspended. Although Sylvester was permitted to rely on a sentencing step-down afforded under State v. Laurick, 120 N.J. 1 (1990) due to the lapse of time between her second and third DUI convictions, the Appellate Division found that Defendant was aware of a valid suspension at the time she drove and therefore the conviction under N.J.S.A. 2C:40-26b was also valid. In upholding the decision of the court below, the NJ Appellate Division relied on the earlier decision in State v. Gandhi, 201 N.J. 161 (2010) wherein the court established that a defendant violating N.J.S.A. 2C:40-26b shall not be entitled to relief from conviction in the event the DUI is later vacated. If you are found guilty of driving while suspended for a second or subsequent DUI, you may be punished under N.J.S.A. 2C:40-26b which bears minimum penalties of 180 days in jail and an additional 1 year loss of license. For more information about driving while suspended for DUI, driving under the influence of alcohol or drugs, controlled dangerous substance (CDS) in a motor vehicle or other serious driving offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Multiple DUI and Driving While Suspended Charges in NJ

In a case involving 3 prior driving while intoxicated (DWI) convictions and 4 prior convictions for driving while suspended, a woman was charged with a 5th driving while suspended (DWS) charge. Such matters involving multiple prior events are forwarded from the municipal court to the county prosecutor’s office for resolution. The jury, in State v. Sharp, indicted the defendant on two counts of 4th degree driving while suspended and the defendant applied for pre-trial intervention (PTI). The defendant was accepted into the PTI program but the prosecutor objected to her entry based on her prior driving record which they found to reflect a lack of interest in rehabilitation and a pattern of disregard for the safety of other motorists and passengers. The defendant filed a motion for admission to PTI over the prosecution’s objection and the judge found in favor of Sharp, permitting her to enter the PTI program. In matters of PTI, the prosecutor has broad discretion in making the determination of whether defendants should be admitted. The standard for a judge to overrule the prosecution in requests for PTI admission is patent and gross abuse of discretion on the part of the prosecution. The state appealed the judge’s decision and the NJ Appellate Division found the judge to have erred in making the decision to overrule the prosecutor’s denial of admission to the PTI program. A guilty finding or plea in a DUI or other criminal matter can have substantial negative consequences on your future. PTI is a diversionary program which permits certain defendants to avoid more serious charges on their record and also is expungeable after a period of time. For more information about PTI, driving under the influence, driving while suspended, controlled dangerous substances (CDS) in a motor vehicle and other municipal and superior court criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Driving While Suspended May Result In Extending Your Suspension

Many New Jersey motorists are stopped on a daily basis for routine traffic offenses only to find out their license is suspended. In many cases, the drivers are suspended for failure to pay a parking ticket, failure to pay New Jersey Motor Vehicle Commission (NJMVC) fines or other administrative reasons. On the other hand, the drivers have been suspended for other reasons such as prior driving while suspended charges, driving under the influence, controlled dangerous substances (CDS) in a motor vehicle or other drug offenses. No matter the reason, driving while suspended can cause an extended loss of your license that you may not have anticipated prior to that routine traffic stop. Violating N.J.S.A. 39:3-40, the NJ statue relating to driving while suspended, carries monetary fines as well as a potential loss of license depending on the circumstances. For first offenders, drivers will have a fine of up to five hundred dollars as well as a surcharge of two hundred and fifty dollars to the NJMVC each calendar year. For second and third time offenders, the fines for driving while suspended increase up to seven hundred and fifty dollars and one thousand dollars respectively. Second and third offenses can also carry from five to ten days imprisonment. Having an experienced attorney can greatly benefit those drivers who are trying to maneuver through these violations with little or no penalties for them to face when their day in municipal court approaches. Those who drive while suspended for driving under the influence face greater penalties. Those drivers can be fined up to an additional five hundred dollars and lose their license for at least one year but not more than two years in addition to suspension period levied during their DWI sentencing. If you are pulled over and are told your license has been suspended, it may be a simple mistake on the part of the NJMVC. However, you do not want to take that for granted due to the consequences and must appear in municipal court with proof the matter has been resolved or you will be subject to the same penalties as if your license was actually suspended. Driving while suspended in NJ carries serious penalties and should not be taken lightly. If you are charged driving while suspended in NJ you should seek an experienced attorney immediately to protect your rights. For more information on municipal court, DUI, CDS in a motor vehicle or other serious drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.