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QUESTIONS ABOUT DUI & REFUSAL LAW / CONSEQUENCES

If I do not own a Motor Vehicle, am I still required to install the Ignition Interlock Device if I am convicted of a DUI or Refusal?

If a person does not own a motor vehicle where an Ignition Interlock Device may be installed. they must attest to not owning, leasing or operating a motor vehicle in order to avoid the above requirement. If that is successful, a particular defendant will be subject to license forfeiture for the period of the interlock installation that would have otherwise been required for the violation.

How do I install the Ignition Interlock Device (IID) in my vehicle?

Service stations specializing in the installation of the Interlock Device can be found easily by simply searching on the internet. Several locations are available; even for same day installation, which will only require making an appointment and obtaining a Certified Disposition or Order from the Court indicating you must install the IID in your vehicle. You may find additional information by viewing the following link. https://www.dmvinterlock.com/offers/nj?ixphone=8339213371&ixsrc=NJ_ignition_interlock_phrase&gclid=CjwKCAiAjoeRBhAJEiwAYY3nDBDSjRsUZoyzJRvDB5dAn0jZJEhQ_1nacSus0WcsSBoJwAKRCIebkRoCxNQQAvD_BwE.

What is the Ten (10) year statutory “step-down” provision regarding DUI and Refusal convictions in New Jersey? How will my prior conviction be viewed or calculated as to when they apply to this rule?

The New Jersey Legislature has provided for relief from prior convictions “enhancing” or theoretically counting against a defendant as it would relate to a 2nd, 3rd or subsequent charge for DUI or Refusal. In essence, if you were convicted of an offense under either N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4 (DUI or Refusal respectively) and at least Ten (10) years has passed before you were charged with another offense, that prior conviction will not count as a prior, and you will not be subject to penalties as a repeat offender; meaning a 2nd, 3rd or subsequent offender.

Can I have a prior conviction reviewed or overturned if I am now charged with another DUI or Refusal?

As most people are and have been aware, a tremendous number of DUI cases in the State of New Jersey have been the subject of extensive litigation throughout Municipal, Superior, Appellate and even the Supreme Court for the last several years. Cases dating back more than a decade have been scrutinized regarding the sufficiency of Blood Alcohol Concentration (BAC) readings per the opinion in State v. Cassidy, which has led to the subsequent Appellate review of nearly 20,000 cases. In addition, matters involving Drug Recognition Examinations (DRE) and allegations of persons Driving Under the Influence of Drugs, medications and/or substances that could impair one’s ability to safely operate a motor vehicle. That case is captioned State v. Olenowski; and may lead to similar proceedings as discussed in Cassidy above. Finally, and irrespective of either of the above, you may have an attorney investigate prior convictions and possibly file motions to re-open and attempt to overturn previous findings or pleas of guilty.

What does the State have to prove in order to sustain a conviction for DUI or Refusal?

In the State of New Jersey, the law governing Alcohol related offenses requires proof beyond a reasonable doubt of all elements of the charges against a defendant. Though not a criminal charge, convictions for DUI carry possible terms of incarceration for a 1st or 2nd offense, and a mandatory term of 180 days in the County Jail for a 3rd or subsequent conviction. The Municipal Prosecutor for the town in which you have been charged represents the State of New Jersey and is responsible for proving that a defendant Operated a Motor Vehicle, there was Reasonable Articulable Suspicion for a motor vehicle stop, that there existed Probable Cause to believe a particular defendant may be under the influence of intoxicated liquors or drugs and finally that there is sufficient credible evidence present and admissible against you to prove you were under the influence at the time you operated a motor vehicle. Plea Bargains are not permitted in DUI or Refusal cases in the State of New Jersey, however a plea agreement can be reached to avoid maximum penalties or a conviction altogether if certain legal defenses can be found and presented on your behalf.

THE CRIMINAL JUSTICE SYSTEM

Please click and follow the link below, or continue for NJ Courts.gov overview of the Criminal Justice Process.
https://www.njcourts.gov/courts/criminal/criminalprocess.html?lang=eng

Intake

The criminal division of the Superior Court manages criminal complaints from the time they are issued to their resolution or disposition. The defendant is charged with an offense as a result of a formal complaint issued by a law enforcement agent or a citizen who believes that an offense has been committed against their person or property. A criminal case also can result from an indictment by a panel of citizens called grand jury, who are gathered to consider evidence. Arrests can occur at the scene of a crime or based on warrants or sworn statements ordering a court appearance. All arrests must be based on probable cause, which means there are reasonable grounds to believe that an offense has been committed and that the defendant may have committed the offense.
Complaints state the reasons for the charge, and refer to offenses listed in the New Jersey Code of Criminal Justice (Title 2C). Criminal offenses are heard or considered in the Superior Court and are more serious than non-criminal charges heard in municipal courts where the offense occurred. Defendants found guilty or convicted of crimes face more serious consequences, with punishment ranging from probation supervision and fines to the loss of liberty through confinement for a year or more. Crimes are classified by degree. Degrees range from first to fourth. A first degree crime carries the potential penalty of 10-20 years in prison. A second degree crime carries the potential penalty of 5-10 years. Defendants who are convicted of first and second degree crimes face a presumptive term of incarceration. It is assumed that they will be sentenced to serve time in prison. A third degree crime may result in 3-5 years if convicted, while fourth degree crimes carry a potential penalty of up to 18 months in jail. There is a presumption of non-custodial sentenced for third and fourth degree offenses. Complaints heard in municipal courts are disorderly persons offenses or petty disorderly persons offenses, which carry less restrictive punishment upon conviction. Disorderly persons offense may result in up to 6 months in jail. Petty disorderly persons offenses may render up to 30 days in jail.

First Appearance and Setting Conditions of Pretrial Release

Once a complaint is issued, a defendant is either arrested on a warrant or issued a summons to appear in municipal court or Superior Court on a first appearance, which is the defendant’s first appearance before a judge. As part of the criminal justice reforms implemented on January 1, 2017, the first appearance for defendants arrested on a complaint-warrant must occur within 48 hours of the defendant’s commitment to the county jail. During the first appearance, a judge will set conditions of pretrial release for eligible defendants, order pretrial detention in certain cases or set a bail. If the defendant fails to appear for the first appearance, a warrant may be issued for his or her arrest by a judge.

Bail

Another aspect of criminal justice reforms implemented on January 1, 2017, is that bail is applicable in a very limited number of cases. Defendants who were arrested prior to January 1, 2017 still have a constitutional right to bail. If bail is posted, defendants are released until the charges listed in the complaint are resolved. Defendants can be required to post funds or property to assure that they will appear in court in the future. They may be required to deposit funds or property in exchange for a promise to appear. If defendants have significant ties to the community, or no criminal history, they may be considered for a Release on Own Recognizance (ROR), which is an affidavit certifying that they are aware of the charges levied against them and will appear in court to face them. Defendants also might be required to give a personal bond, which is a promise to appear or face a judgment, whereby a specified amount of money is forfeited. Some defendants pay a bail bondsman to post funds on their behalf. These defendants may be ordered to post a higher bail, or have no bail set. They will remain in jail until the charges are disposed. If they are released and appear in court as required, bail money may be refunded in full upon the case resolution or disposition. Once defendants are released, bail is discharged to the surety.
When a bail is set, bail investigations may be ordered by a Superior Court judge in the criminal division. Criminal division bail investigators collect information on the defendant’s ties and standing in the community in addition to the names, addresses, dates of birth, employment, criminal record, mental health and drug abuse history. They also investigate and report on a defendant’s amenability to bail. Bail investigation reports consider the seriousness of the offense and the severity of punishment upon conviction as well as the defendant’s family ties and financial status. All of these factors are considered in light of the probability that the defendant will appear for trial or other court events. Bail investigators report to the judge, who hears evidence from the defense and prosecution and decides the amount and form of bail to be set, if any.

Right To Counsel

At their first appearance, defendants also are advised of their right to counsel. This means that they are entitled to have an attorney represent them and answer the charges. If they indicate that they are unable to afford an attorney, criminal division staff are assigned to conduct indigence investigations. These investigations consider the defendant’s assets and liabilities and can result in a recommendation that cases be assigned to a public defender if a defendant is unable to afford a private attorney. Private attorneys are usually either self-employed or work for private law firms that charge an hourly rate for services. In making indigence determinations, staff review the defendant’s tax returns, credit and wage records and any other relevant information regarding the ability of defendants to hire their own attorney. If a defendant is determined indigent, a public defender or a pool attorney is assigned to handle the case until it is resolved. If the investigation reveals assets or it is determined that a defendant has some means to pay for an attorney, the application may be denied. A criminal division judge may make the final decision to order a defendant to hire an attorney, allow pro se (self) representation, or order a defendant to consult an attorney who may take their case at a reduced rate.
At their first appearance, defendants also are advised of their right to counsel. This means that they are entitled to have an attorney represent them and answer the charges. If they indicate that they are unable to afford an attorney, criminal division staff are assigned to conduct indigence investigations. These investigations consider the defendant’s assets and liabilities and can result in a recommendation that cases be assigned to a public defender if a defendant is unable to afford a private attorney. Private attorneys are usually either self-employed or work for private law firms that charge an hourly rate for services. In making indigence determinations, staff review the defendant’s tax returns, credit and wage records and any other relevant information regarding the ability of defendants to hire their own attorney. If a defendant is determined indigent, a public defender or a pool attorney is assigned to handle the case until it is resolved. If the investigation reveals assets or it is determined that a defendant has some means to pay for an attorney, the application may be denied. A criminal division judge may make the final decision to order a defendant to hire an attorney, allow pro se (self) representation, or order a defendant to consult an attorney who may take their case at a reduced rate.

Following the filing of a complaint and the first appearance, the prosecutor’s office in each county determines whether to pursue the case further. Prosecutors determine if cases have merit and sufficient evidence to pursue a conviction. In most counties, the prosecutor’s case screening unit reviews police reports and interviews victims and witnesses to determine if the original charges will be prosecuted. If there is insufficient evidence, the charges are downgraded to disorderly person offenses or remanded back to the municipal court for a hearing or dismissed.

Substance Abuse Evaluations

According to state and federal estimates, up to 70% of all persons charged with a criminal offense are impaired with drugs during the crime. Substance abuse evaluators interview defendants charged with drug and property offenses to determine the extent of their involvement with drugs. Working within the criminal division’s treatment assessment services for the courts (TASC), these professional evaluators interview defendants, subject them to urine screening to identify current drug use, and prepare drug assessment reports for criminal judges. The reports detail drug abuse histories, identify treatment needs and recommend counseling at local drug and alcohol treatment centers when support is needed to overcome the addiction. Judges may order defendants into drug or alcohol treatment as a condition of their pretrial release or probation. This program is helpful to judges when determining appropriate community support systems for defendants who are released from jail. Failure to complete treatment may result in sanctions, including probation revocation with a loss of liberty. For some defendants who suffer from severe drug addictions, receiving treatment arranged and mandated by the courts becomes not only a choice between jail and community living, but one of life and death.

Plea Bargains

In many cases, the prosecutor and a defendant’s attorney will negotiate a plea bargain. In a plea agreement, the prosecutor may offer the defendant an arrangement with a reduced term of incarceration or probation in exchange for a guilty plea. In some instances, the charges are downgraded or dismissed as part of the plea agreement. Maximum sentence terms also could be part of negotiated agreements. Criminal Division individual judge teams, managed by team leaders, coordinate court dates with the prosecutor and the defense attorney regarding the plea agreement and establish a court date for the plea to be entered on record. Defendants entering a plea must sign a statement certifying that they understand the plea and are entering into the agreement voluntarily and without pressure from the prosecution or their own attorney. They also acknowledge that the Criminal Division judges are not bound by the agreement when deciding and rendering sentences. If a judge perceives that the plea bargain is too lenient, the judge can reject the plea and order the prosecution and defense parties to renegotiate, or order the matter set down for trial. Defendants who plead guilty to crimes are subject to a presentence investigation, which is conducted by probation officers in the Criminal Division.
The Criminal Practice Division of the Administrative Office of the Courts tracks all criminal cases in all counties from the time a complaint is issued to its disposition in order to create statistical reports and monitor backlog.

Pretrial Intervention Program (PTI)

Criminal division probation officers conduct investigations on adult defendants who apply for Pretrial Intervention. This is a diversionary program that permits certain defendants to avoid formal prosecution and conviction by entering into a term of court supervised community living, often with counseling or other support. Criminal division managers direct this program. Probation officers conduct investigations into the history of all applicants to ensure their eligibility. Their reports aid the Criminal Division Manager and the prosecutor in deciding whether to recommend approval, and they also assist criminal judges in determining if defendants will be admitted. Defendants opting for this program apply directly to appropriate criminal division manager’s office. Admission to PTI requires the consent of the prosecutor, the criminal division manager and the judge.
Defendants charged with violent offenses generally are not admitted. Probationers and parolees also are generally excluded since they have prior convictions. Persons accused of racketeering or organized crime are generally not admitted as well as public officials who are accused of abusing their positions for personal gain against the public trust. Prosecutors must be consulted before an applicant charged with a first or second degree crime can even be considered for PTI.
The objective of PTI is to provide an incentive for first time non-violent offenders to rehabilitate. Conditions attached to judicial orders for PTI may require defendants to obtain a substance abuse evaluation from TASC, participate in substance abuse or mental health counseling or community service, or submit to urine testing, pay restitution and fines, or give up a firearm or a driver’s license. Participants have criminal charges formally suspended for up to three years. Once a participant completes the program, charges are dismissed. However, if defendants fail to complete special conditions attached to their term of PTI supervision, they can be terminated from the program. The termination triggers resumption of the formal criminal process. The defendants may face indictment and trial, and if convicted, face the penalties prescribed by the Criminal Code. The Administrative Office of the Courts maintains a computer registry of all PTI applicants to ensure that a person is not admitted into PTI more than once.
For more information, Contact Your Local Superior Court Criminal Division.

The Grand Jury and The Indictment Process

If a criminal case has not been downgraded, diverted or dismissed, the prosecutor will present the case to a grand jury for an indictment. The grand jury is composed of a group of citizens who have been selected from voter registrations, drivers’ licenses and tax lists. It is their civic duty to serve. The grand jury considers evidence presented by the county prosecutor and determines if there is sufficient evidence to formally charge defendants and require them to respond to the charge(s). An indictment is not a finding of guilt. Neither the defendants nor their attorneys are present. Witnesses normally testify regarding the crime. After considering the prosecutor’s evidence, if a majority of the 23 jurors vote to indict, the defendant must face further criminal proceedings. This finding is a true bill that triggers further proceedings in the Criminal Division of Superior Court. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge the defendant with a less serious offense, to be downgraded or remanded to the municipal court. The defendant must then appear in municipal court to face a disorderly persons or petty disorderly persons charge.

The Arraignment

An arraignment is the formal notification of the charges against the defendant. The arraignment occurs within 14 days if the indictment. Upon notification by the criminal division, the defendant must appear before a judge for the arraignment. Defendants may wish to apply for public defender representation at this point if they are not yet represented. Prior to this conference, discovery or evidence is available to defense counsel. This exchange of evidence provides the defense with an opportunity to review the evidence the prosecution intends to use against the defendant prior to the conference. After reviewing the discovery provided prior to the arraignment, the defendant may decide to apply for Pretrial Intervention (PTI), or to enter plea bargain negotiations. Defendants also may indicate their intention to plead guilty to the charge for which they were indicted. If a guilty plea is entered at the formal arraignment, criminal division judges order a presentence investigation to be conducted by criminal division probation officers. Sentencing will follow the presentence investigation, generally four to six weeks after convictions.

Disposition/Status Conferences and the Pretrial Conference

Defendants who have pleaded not guilty at this point may continue plea negotiations or preparation for trial. Pretrial case resolutions may occur at a disposition/status conference, where a defendant may decide to enter a guilty plea with or without a negotiated plea bargain.
At the pretrial conference, defendants may enter a guilty plea to the charges. A plea cutoff date is set, after which no further plea negotiations can occur. If no agreement to plead guilty is reached, the matter will proceed to trial. Criminal division staff track conferences to ensure that cases are moving without undue delays.
The Criminal Practice Division at the Administrative Office of the Courts evaluates statistics entered by staff in each criminal court to monitor the overall case movements statewide. It also assists local court staff to address backlog if it should occur.

Trials

Starting on January 1, 2017, the Criminal Justice Reform laws required certain speedy trial deadlines. Defendants have a constitutional right to a jury trial, but may opt to forego this right in favor of a trial by a judge in the Criminal Division of the Superior Court. Once a case has been tried, there are two outcomes. Defendants are found either guilty or not guilty by a jury or judge. Normally, an acquitted person has no further obligation to the court unless they face new charges. Prosecutors have no right to appeal acquittals and defendants may not be charged twice for the same offense. Defendants who are found guilty or convicted face sentencing, where punishments are rendered by the judge who tried the case. Once a trial is concluded, the criminal judge orders a presentence investigation by the criminal division on all defendants who have been convicted. Judges also set a date for sentencing.

Presentence Investigation Reports and Sentencing

Criminal division probation officers prepare presentence investigation reports (PSIs) for criminal judges who render sentences on all convicted defendants. The presentence investigation report is designed to assist a judge in weighing the circumstances of the crime and a defendant’s criminal and juvenile record and overall life situation to the severity of the sentence. The presentence investigation report provides a uniform assessment of a defendant’s overall family, medical and criminal background. Offense circumstances are summarized, as are statements received from victims and their families. Assessments of drug abuse history and the amenability to probation supervision and treatment are addressed. Financial conditions of defendants are considered, since most sentences involve a fine, penalty or restitution to a victim. Assessments of the defendant’s situation and the suitability for probation also are discussed. Reports generally recommend either prison or probation. Judges are not bound by the probation officers’ advice in the report, but their insight is essential in the criminal sentencing process.
Judges consider the degree of harm and hardship imposed on victims and their families. Mitigating factors or reasons explaining the crime in the light of a defendant’s past or present circumstances weigh against aggravating factors, which are elements that speak to the severity of the crime. Prior criminal record weighs heavily. It is an indicator of a defendant’s potential for rehabilitation based on his past history as well as the risk posed for another crime if probation is ordered.
In most cases, sentencing judges have some discretion or choices on how they will sentence convicted defendants within the parameters of the Criminal Code. This discretion may extend to whether a defendant must serve time in prison or receive a term of probation. Of course, a judge’s discretion may be limited if there is a plea agreement that contains a sentencing recommendation. Some crimes, such as convictions for using a gun during a robbery, carry mandatory prison terms. The judge must sentence a defendant to prison for at least a minimum term.