What Is The IDRC? How Does It Apply In A Third Offense DUI Case?
The IDRC really is not a big deal on a third offense case; it is just classes you have to attend. Normally, that is going to be the forty-eight hour IDRC and the IDRC is in lieu of two days jail time. Another one of the arguments that we are making for the third offense jury trial, is that constitutionally, once you pass one hundred and eighty days in jail, you are supposed to get a jury trial. If you are also doing the IDRC for two days, you are at one hundred and eighty-two days. So it has passed the time for the constitutional requirement for a jury trial. It is an issue in that case and that case is called State V. Denzelbeck and we are expecting that jury trials will be available for third time offenders, relatively soon, after the Supreme Court rules on that case.
What Benefits Does A Jury Trial Holds For The Defendants?
There is more sympathy in the jury. The jury brings the understandings of the community and the person who is on that jury experiences a sense of fairness. If juries are supposed to follow the law, they sometimes may take different credible positions than a judge would. A judge will have to see the officer every week, he is in court and may not want to say, “I don’t find this credible”, or, “I think that the officer was being such a jerk that we should dismiss this case”, juries will. Juries do not work for the government. They are not lawyers, they do not see these cases every day and that is why we want people to have juries.
Will A Prior DWI Offense In Another State Impact A Third Time DUI Case In New Jersey?
Yes, that would count as a prior driving while intoxicated offense if it is the equivalent of New Jersey’s DUI. For instance, in New York, there are other types of driving while intoxicated or driving under the influence, they do use that term there, which are considered less serious. They may be under 0.08, which is the level in New Jersey, or maybe 0.07 or there may be no breath test reading so that it would be included. There was also a case on the driving while revoked statute for DWI purposes which is 2C40-26 where it was held that out of state violations do count for that statute as well even though the statute only references prior violations of 394-50.
The bottom line is yes, the prior offenses do come into play here. The question though is does the defendant have to reveal those prior offenses? Because then, it is a question of whether they are being compelled to testify against themselves and provide evidence against themselves. We always take the position that defendants should not be asked that question and that we will refuse to have the question answered which makes it sometimes unpopular, but we have to act in the best interest of our clients.
Is It Easy To Beat A Third Time DUI Charge In New Jersey?
First of all, the judge is not supposed to know about your past history, he is not supposed to see that at the time of trial. But there is an issue which brings it before the judge. One of the things that we will do on a third offense case is we will look to get post-conviction relief from prior DWIs. It comes under case called State V. Lark and what is happening is if there was a technical issue or you did not have counsel at one of the other two DWIs, we will seek an order from that court that the prior DWI will not be considered for sentencing purposes or incarceration. Let us say on your first offense, you went to court, you did not have a lawyer and you said, “I want to plead guilty”, and they stupidly took it. Or on the second offense, you went to court and they did not take an allocution, they did not swear you in, they did not offer you proper legal rights.
We will appeal to those courts to issue the order that on the third offense, the second or first offense cannot be used to consider incarceration. So we try the case on the third offense and then at the end of the day, we say, “Oh by the way, we have this order that you can’t use offense one or two to determine incarceration”. What that means is that on every third offense case, we have to pull the file from the first and the second, review it, and make a motion or an order to keep that from being considered against the defendant so that we turn a third offense into a second offense. Even if we lose, we keep the client out of jail but that requires a lot of work and that is why a lot of attorneys do not know how to process this situation and they will not take the third offense case because they do not know how. It pays off a great deal and at the end of the day, your client should not be going to jail like you found a loophole to keep them out.
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