Charged With Your Third Offense Under N.J.S. 39:4-50?
If is unlawful under N.J.S. 39:4-50 to operate a motor vehicle in Livingston, Millburn or anywhere else in Essex County with a blood alcohol concentration (BAC) of .08% or more. While this may not have come as a surprise, you may not realize probably do not know that If you have a previous conviction for DWI, then you probably have some familiarity with this law but may not be aware that there is a mandatory jail term for a third offense. A municipal court prosecutor nor judge has any discretion to plea bargain a third offense. It is therefore imperative that you fight a third or subsequent offense if you want to avoid jail, as well as a ten (10) year license suspension. At the Law Offices of Jonathan F. Marshall, our team of criminal trial attorneys have over 100 years or cumulative experience. Our legal defense team has obtained dismissals and acquittals of DWI charges throughout New Jersey, Essex County included. Call our Newark Office and speak with an experienced attorney today, free of charge at 973-710-1520. Find out how we can assist you with your pending third offense.
What are the Penalties for a Third or Subsequent DWI Offense in New Jersey?
If convicted of a third violation within ten (10) years of the second offense, you will be subject to a fine of $1,000.00, as well as the following mandatory assessments: $50 for the Victims of Crime Compensation Board, $75 for the Safe Neighborhood Fund, $100 for DUI Enforcement, and $100 as a DUI Surcharge and $33 in Court Costs. The third time offender will be sentenced to a mandatory 180 day jail term. A third time offender will also lose their license for ten (10) years and be forced to install an ignition interlock device in any vehicles registered to them. Although these penalties are mandatory in the event of conviction, our attorneys are frequently successful in avoiding incarceration and this is the case even when the defendant is found guilty of the third offense. The primary way to achieve this result, assuming the charge cannot be overcome, is to utilize post-conviction relief in the courts that were involved in the first and second conviction. A lawyer on our team is ready to review the facts of your third offense and provide you with what they believe to be your best strategy for avoiding the charge, jail and/or a 10 year license suspension.
What is “Operation of a Vehicle” for a DWI?
For the Prosecutor to convict someone of a DWI offense, they must prove operation of motor vehicle, along with intoxication. While these two elements may seem straightforward, there is some complexity. To demonstrate “operation of a vehicle”, the State must prove the following four (4) elements:
• Control of the Vehicle. Typically, to prove this the prosecution must show is that the defendant was essentially sitting on the driver’s side, behind the wheel of the car. Simply being in this location will be sufficient for proof control. Just as DWI offenses can apply to non-automobile, this element will only require control of the wheel or object used to steer and move the motor vehicle.
• A Present Intention to Cause the Motor Vehicle to Move. The term “intent” here, indicates that actual movement of the car is not necessary to prove “operation of vehicle” under a DWI offense. Instead, a mere intention to move the car is sufficient. In theory, a person could start the car and be sitting in the driver’s seat, but if they have no intent of placing it in motion then, technically, they are not operating the motor vehicle. Despite this caveat, however, intent can be proven, when a person is in an intoxicated state, by virtue of all actions taken even if the defendant claims they had no intent to move the vehicle. What this means is that the police can infer intent when a person is in an inebriated state.
• Some Action Taken to Place the Vehicle in Motion. Under this portion of “operation of a motor vehicle”, the defendant must take an action reasonably calculated to put the motor vehicle in motion. The use of the phrase “reasonably calculated” permits an expansive interpretation for this section because because there are many things that can be construed as actions reasonably calculated to put a motor vehicle in motion. Prosecutors will look to construe the facts as broadly as possible, in an effort to indicate an attempt to put the motor vehicle in motion. You may think that not having the keys in the ignition is sufficient to protect you from prosecution, but under this broad interpretation, you may be incorrect.
• The Possibility of Motion of the Vehicle. The final element is that the vehicle must be movable by any means possible, including pushing or gliding. Therefore, in theory, a person could be guilty if the first three elements of the offense are satisfied and the car does not even have an engine, so long as the car can still be pushed to be put in motion. Of course, a person could not be guilty of a DWI, however, if the vehicle in question was in fact immovable, such as a person sitting behind the wheel of car with no wheels.
The attorneys at the Law Offices of Jonathan F. Marshall understand the complexities within New Jerseys DWI regulations. Contact our DWI Defense Law Firm at 973-710-1520 and speak with an experienced attorney about your Bloomfield, East Orange or Newark third offense.