Thomas was charged with driving under the influence of alcohol (N.J.S. 39:4-50) in Toms River Municipal Court. He got pulled over in December of 2014 and given the field sobriety tests. He gave a breath sample resulting in a blood alcohol content of .20. That level of alcohol is approximately 2 ½ times the legal limit. They charged with DUI (N.J.S. 39:4-50), driving with a suspended license (N.J.S. 39:3-40), and two other violations. The officer found that he had failed to appear for a prior driving with a suspended license (N.J.S. 39:3-40) also in Toms River in October of 2014. While these cases were in litigation with his NJ DUI lawyers, Thomas got pulled over again in Toms River. He was charged with five more tickets including driving with a suspended license (N.J.S. 39:3-40). In total Thomas had over 15 tickets in Toms River Municipal Court.
How Is Driving With a Suspended License Worse Than a DUI?
So here’s the dilemma. DUI is by far the most serious offense he was facing. However, he was charged with three offenses for driving with a suspended license (N.J.S. 39:3-40). He already had had one prior conviction for driving with a suspended license (N.J.S. 39:3-40) so this could have been his second, third, and fourth respectively. For a second violation for driving with a suspended license the fine is $750.00 + 33 court costs and one to five days in jail. The third violation and any subsequent violation is $1,000.00 + 33 court costs, minimum of ten days in jail plus whatever he faced in his prior violation. That’s almost $3,000.00 in fines and 35 days in jail just for the driving with a suspended license offense (39:3-40).
As his NJ DUI lawyers, we really didn’t have many defenses to driving on a suspended license, and there were three separate incidences. Now some of the discovery issues we raised were a lack of proper notice as to driving with a suspended license. We would probably be able to beat the first offense using this, but by the time the second or the third offense came around and he had failed to appear in court there really wasn’t a defense. Let’s use a headlight as an example. Say a police officer gives you a ticket on one date for having a broken headlight (N.J.S. 39:3-66) and gives you another ticket on the second date for the same problem. Okay, so maybe you didn’t know about it the first time but you knew about it the second time. It’s not the best example, because your knowledge isn’t an issue in broken light violation (N.J.S. 39:3-66) where it is on suspended license (N.J.S. 39:3-40) tickets, but you get the idea.
If he is convicted of one violation he can go to jail, but in some circumstances he could get a jail credit and not actually spend any time in a county correctional institute. If he is convicted of two of the violations he is absolutely going to jail for at least 10 days. If he goes to jail immigration will interview him and can place him in removal proceedings.
What Did the State’s DUI Case Look Like?
Let’s look at the DUI now. NJ DUI lawyers ordered the discovery, we reviewed the video, and they provided all the alcohol test information necessary to show that allegedly the machine was in proper working condition. Then we reviewed the narrative of the police officer and there were problems. Oh boy, were there problems. The officer’s explanations of the field sobriety tests and demonstration were deficient. What does that mean? The officer has to not just instruct you on how to do the exams but also has to demonstrate. If he or she fails to demonstrate or explain it properly and you then don’t do it properly, there is no proof that you were in fact driving under the influence. Stated another way, the officer can’t hold it against you if you did it improperly if he instructed you improperly. Why is that important? The field sobriety tests are what the officer primarily uses as a basis to arrest you for DUI.
After Thomas was arrested he was taken to the station, observed for 20 minutes and then he gave two breath samples. During the 20-minute period Thomas vomited several times, and the officer did not have him rinse out his mouth. He did begin another 20-minute period, but if he didn’t rinse out his mouth there could still have alcohol in his mouth. That makes the breath samples invalid. There is more. Thomas blew six times and the police report doesn’t state the mouthpiece was changed before each new breath sample.
There were other procedural problems with the state’s case but Thomas was an excellent candidate to beat the DUI. There were clear and obvious problems with the field sobriety test, which means there was a probable cause issue, and there were clear and obvious problems on the breath samples. We NJ DUI lawyers got an expert to testify to that, and he wrote an excellent report and with his credentials it was believable.
Here Is Thomas’ Dilemma
As his NJ DUI lawyers, we advised him that if he is ever placed in custody by immigration a DUI conviction (N.J.S. 39:4-50) is much worse than even a 10 day jail sentence for driving with a suspended license (N.J.S. 39:3-40). I also spelled out the immigration consequences of a DUI conviction (N.J.S. 39:4-50). I gave him a choice. I could beat the DUI, but he likely be convicted of at least one if not two driving with a suspended license (N.J.S. 39:3-40). Or he can plead guilty to the DUI (N.J.S. 39:4-50) but not go to jail.
He had three separate incidences of driving without a license (N.J.S. 39:3-40):
- There was a notice issue, likely dismissal.
- Issued on the same day as the DUI, so this one was dismissed.
- He was arrested with the third ticket charge. He could plead guilty get a jail credit and not go to jail.
Thomas Preferred to Avoid Jail Despite the Immigration Consequences
That means he plead guilty to the DUI. So you tell me, was this a good result or a bad result? We had great defenses for the DUI, but he plead guilty to that one. We had almost no defenses to driving with a suspended license and a guarantee of going to jail but he didn’t end up going to jail.
Thomas asked me what I recommend. I told him this is his life and I can’t make this choice for him. It is my role to give him options, but at the end of the day he had to live with the consequences.
Free Resources for You
If you are charged with a DUI you need to know your options before going to court. On this page you will see an offer for my books, click the link, put your name and contact information and we will give you these books free:
- Arrested for Drunk Driving? Learn how to Beat the Odds – Here I discuss defense strategies, and common mistakes I see other attorneys make in defending these complicated cases. I also list for your question you should ask any attorney that you interview for your defense.
- Why Pleading Guilty to Your New Jersey Traffic Ticket is NOT an Option – Here I discuss court process and violations, including DUI’s. There lots of case examples here.
- An Immigrant’s Guide to Municipal Court. This discusses specifically what you will encounter in Municipal Court if you aren’t a U.S. citizen and how it can result in removal proceedings in Immigration Court. I define important terms and guide you through the Municipal Court and Immigration Court process.
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