Under NJSA 39: 4-50 (a)(3), a violation of any law "substantially similar" in nature to New Jersey’s DUI statute will constitute a prior conviction for sentencing purposes.

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.


 

Our law firm represents a number of individuals in New Jersey for DWI who have prior, out of state DUI convictions. New Jersey, like Pennsylvania maintains a tiered DWI statute, which enhances penalties based on one’s level of intoxication (BAC) and prior DUI offenses. Keep in mind that those who enter into a non-trial disposition diversion program, such as Pennsylvania’s Accelerated Rehabilitative Disposition (ARD), are still at risk for enhanced penalties. While an ARD disposition will not result in a conviction, the law treats a diversion program like a conviction because it assumes a person entered into the program to avoid the conviction.  New Jersey doesn't maintain any pre-trial diversion DWI programs 

 

New Jersey's Enhanced DWI Penalties  

In New Jersey, a prior, out of state DUI conviction will enhance a subsequent conviction that occurs in the state regardless of whether that other state was a member of the Interstate Driver’s License Compact. Under NJSA 39: 4-50 (a)(3), a violation of any law "substantially similar" in nature to New Jersey’s DUI statute will constitute a prior conviction for sentencing purposes. Prior to the enactment of that statute an out of state conviction would only trigger enhanced penalties if the state from which that conviction derived was a signatory to the Interstate Driver’s License Compact.  Check out my article on this topic for more information 

 

How Your Criminal Defense Lawyer Handle An Out of State Conviction  

 

If you're charged with a DWI in New Jersey, your criminal defense lawyer should address the out of state conviction issue with the prosecutor for that particular municipality. There are 2 main defenses which your attorney can assert in the New Jersey municipal court. Remember New Jersey municipal court maintains jurisdiction over all DWI offenses which do not involve serious personal injury, death, or property damage. New Jersey considers these crimes indictable offenses, over which the state’s superior court system (trial court) maintains jurisdiction. 

 

The Defense to Out of State Convictions in New Jersey  

With regards to possible defenses against out of state convictions, your attorney should first assess, whether for sentencing purposes, the out of state conviction fell under a law which is substantially similar to the New Jersey drunk driving statute. The state will count the prior out of state conviction unless the defendant can demonstrate by “clear and convincing evidence” that a conviction in another jurisdiction was based exclusively upon a violation of a prescribed blood alcohol concentration (BAC) of less than .08 (the legal limit). This defense is also applicable at any administrative proceeding before New Jersey’s Motor Vehicle Commission.  

 

In addition to enhanced penalties which could extend a license suspension, New Jersey can impose administrative surcharges on resident drivers for out of state driving convictions. If a New Jersey resident is convicted of drunk driving in Pennsylvania, the length of the suspension will be in accordance with the minimum license suspension period available under New Jersey’s drunk driving law (NJSA 39: 4-50), and based on a person’s prior conviction history. For example, a New Jersey resident is convicted in Pennsylvania; New Jersey would suspend that resident’s driving 2 years for the 2nd offense, and 10 years for a 3rd offense. 

 

New Jersey DWI Surcharges  

Keep in mind that New Jersey can and will impose surcharges on both New Jersey driver’s and non-resident drivers who commit DWI offenses within the state pursuant to NJSA 17: 29a – 35(b). Depending on the state however, it may be difficult or impossible for New Jersey to collect these surcharge payments unless the state can somehow assert jurisdiction over that non-resident to enforce payment. New Jersey residents are not only liable for the state’s imposed surcharges but New Jersey law specifically imposes the requirement that resident driver’s pay all out of state surcharges pursuant to NJSA 17: 29a – 35(b)(1)(a). The current surcharge for DWI convictions which occur in the state or as the result of an out of state conviction is $1,000 per year for 3 years for a 1st time offender and $1,500 for 3 years for all subsequent offenses.  

For more information please keep reading my blog as our office represents individuals in Camden, Gloucester, Burlington, Cumberland, Atlantic, and Cape May County.  

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