Is the New DWI Legislation Constitutional?

A Proposed Bill Would Stiffen DWI/DUI Penalties and Raises Serious Constitutional Questions

NJ DWI Arrest

We’re constantly tracking developments in New Jersey DWI/DUI law; not just when the bills are signed into law, but also when the legislation at issue is initially conceived and debated in Trenton and around the state.

As designed, the recently committee-approved General Assembly bill A-3057 “[c]riminalizes second or subsequent drunk driving offenses in certain cases.” 29 of the Assembly’s 40 memebers reportedly support the bill.

How would A-3057 change New Jersey DWI law? According to the official synopsis,

[t]his bill establishes criminal penalties for second and subsequent offenses of driving under the influence (DUI) when the second or subsequent offense occurs within 60 days of the first offense.  [Emphasis Added.] The bill also requires law enforcement officers to input summonses for DUI offenses into their system within three hours of the end of the officer’s shift.  The bill permits the court to impose bail in an amount up to $10,000 and requires the court to suspend the person’s driver’s license.”

The bill’s penalties for second offenses are harsh and represent a significant increase from the current penalties for repeat DWI offenders:

Under the provisions of this bill, a person who is convicted of a second or subsequent DUI offense that occurred within 60 days of the first offense would be guilty of a crime of the fourth degree in addition to any other penalties imposed for DUI or refusal to submit to a breathalyzer test.  A crime of the fourth degree is punishable by a fine of up to $10,000, imprisonment for up to 18 months, or both.”

18 months of prison for a second DWI offense would represent a huge change in the law. But did you pick up on the potential constitutional problem with this legislation, folks?

After a motorist is arrested and charged with a DWI/DUI offense in New Jersey, the legal process often takes months to unfold. Adjournments are commonplace as discovery is exchanges and experts are retained. Long story short, the average DWI/DUI defendant waits more than sixty (60) days before their matter is resolved.

New Jersey Breath Test DUIWith that fact in mind, the question becomes: how can the legislature penalize you for a “second” offense when your “first” offense hasn’t been resolved? That’s akin to punishing someone on the basis of a crime for which they haven’t been found guilty!

The legislation itself was crafted in response to an outlier example of bad behavior: a South Jersey man who was charged with driving drunk six times in three months. While no one would condone such behavior, we believe it is also unwise to legislate on the basis of extreme cases. It’s also unfair (and likely unconstitutional) to increase penalties for a crime of which the defendant hasn’t yet been convicted.

We’ll keep a close eye on this bill’s progress through the legislature. Either way, we’re here to help. Before you plead guilty to a DWI in New Jersey and lose your driving privilege, pay a substantial fine, pay surcharges, pay increased automobile insurance premiums and possibly go to jail, contact the DWI defense lawyers at DeMichele & DeMichele.

Our lawyers have worked as municipal court prosecutors and public defenders in several South Jersey towns.  A confidential free consultation with an experienced DWI attorney is just a call (856) 546-1350 or click away.