How Do You Litigate A Third Offense DUI Case?
Maybe there are attorneys who are handling these cases who should not be litigating these cases. If you go in and you speak to an attorney for a third offense case and he quotes you a relatively low number, you should run for the hills and make sure you are with somebody who has the training, the experience and the stomach to handle a third offense case. The first thing is there is a stage which you and I have not talked about yet and that is the appeal. Even if we lose on the third offense, let us say we do not find a post-conviction relief issue that is going to get us out of this, there is no ten year step down. We bring in all the experts in the world and then we try the case and we do not prevail, the next step is the appeal.
The first appeal goes to the law division where a trial de novo is heard, and then the next appeal, and we are attempting to get a stay of sentence during that period. And then if we lose the trial de novo, we are then appealing to the appellate division and again trying to get a stay of the sentence to keep our client out of jail. At the minimum, this can involve keeping the client out of jail for several years, several years without a chance to prepare for what may happen or we are not bringing these appeals without basis. There are legal issues which we are appealing. One of the legal issues is right now a big deal is the third offense jury trial. At the current moment, New Jersey does not provide a jury trial for third offenders.
The case has worked its way up through the courts and it is now before the Supreme Court who seem to understand that New Jersey should be giving jury trials to third offenders. These third offenders face a ten year loss of license, one hundred and eighty days in jail, the ignition interlock, the IDRC and fines, penalties and surcharges which could cost up to around $20,000. Now, there was a case that was heard many years ago, State v. Ham in the New Jersey Supreme Court, which declined to give jury trials for third offenders because they said, “The state is not currently at 180 days mandatory but if they ever go to 180 days, we are going to take a closer look at all these other repercussions and whether they are packing in so many penalties that they are entitled to a right to a jury trial”.
That is certainly a case which we are looking at and we are expecting that New Jersey Supreme Court is going to grant third offense jury trials which will completely change the entire outlook. What a lot of lawyers expect is that the legislature, as soon as that happens, will create a third offense indictable criminal offense so that these matters will become criminal matters. The police are treating them like criminal matters so maybe that should happen. The downside is that you would then end up with a criminal record as well for DWI. There is also a case that is now before the United States Supreme Court which could require police to obtain a warrant before giving a breath test. It is a very significant development.
If it happens, we are already preparing for that by requesting warrants for the breath test and making that an issue that we can appeal. Until the Supreme Court grants that we are not just litigating these third offense jury trials to win at the trial level; we are preparing for the appeal and we are trying to create issues on appeal that we may lose at the lower court, but eventually many years down the line, we win and until then, we keep our clients out of jail. We make no mistake about it, these are expensive cases, but if you are facing essentially the end of your life as you know it, that is the type of defense that you should be trying to put forward on a third offense case.
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