Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar. Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision. Oral argument has not yet been scheduled.
Showing posts with label sentencing. Show all posts
Showing posts with label sentencing. Show all posts
Tuesday, May 18, 2010
DWI Changes: An Update
In January, I posted a discussion of State v. Ciancaglini here, regarding the sentencing changes in the DWI and refusal laws.
Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar. Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision. Oral argument has not yet been scheduled.
Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar. Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision. Oral argument has not yet been scheduled.
Saturday, January 16, 2010
New Interlock Law for DWI
A revision, dubbed "Ricci's Law," to the current DWI statute revises ignition interlock device requirements for certain offenders. This law has passed the legislature and is awaiting the signature of Governor Corzine.
Ricci Branca was a south Jersey teen who was riding his bicycle with friends when he was struck and killed by a drunk driver. Two of the other cyclists were injured. The drunk driver, who'd had at least 10 drinks before getting behind the wheel and who had a BAC of over .30, is now serving a 16-year sentence for aggravated manslaughter and related charges.
An ignition interlock device is a mechanism installed into a vehicle's dashboard. It works like a breathalyzer, and prevents the vehicle from starting if a BAC (blood alcohol concentration), usually between .02 and .04 is registered. Many studies have shown that interlock devices assist to prevent drunk driving and are effective in combating repeat offenses of DWI. I am not going to dispute those studies, although the device is not foolproof and requires maintenance.
The DWI statute in NJ, as it stands now, provides that a judge may order the installation of an ignition interlock device for six to twelve months for first offenses. For second, third, and subsequent offenses, judges must order the installation of an interlock device for one to three years or suspend all license plates and registration certificates for two years (for a second offense) or ten years (for a third or subsequent offense).
Those registration suspensions run concurrently with the required license suspension of the offender; two years for a second offense, and ten years for a third, and affect only vehicles owned by the defendant or registered to him. They are a current alternative to the installation of the interlock device.
With the revision, the bottom first-offense tier would not be altered. A person convicted of DWI with a BAC of at least .08 but less than .10 would be subject to the same penalties as previously.
However, a first-offense DWI conviction with a BAC of .10 or higher would now require the installation of an interlock device in the vehicle principally operated by the offender, no matter who the owner.* The installation would be required for six to twelve months after the period of drivers license suspension expires.
A first-offence DWI conviction with a BAC of .15 or higher has the same requirement, except that the installation must occur during the period of license suspension and extend six to twelve months thereafter.
For a second DWI conviction, the judge's option to suspend a person's registration for two years concurrent with the required license suspension would be eliminated, and the interlock installation during the two-year period of license suspension and for one to three years thereafter would be required.
For a third DWI conviction, the judge's option to suspend a person's registration for ten years concurrent with the required license suspension would be eliminated, and the interlock installation for the ten-year period of suspension and for one to three years thereafter would be mandatory.
Note: This new interlock requirement will also apply to convictions for refusal to submit to a breath test.
*This means that if a vehicle you own and which is registered to you and used by you is also the principal vehicle of your spouse, parent, child, sibling, roommate, friend, partner, girlfriend, or boyfriend your vehicle will require the installation of the device and you will be required to use the device to start your ignition for the entirety of the period of installation, anywhere from six months to thirteen years. Be careful! This means that the vehicle may not start if you (the non-offender owner or driver of the vehicle) are using it and have a glass of wine or a beer with dinner. These interlock devices are sensitive and will also register a BAC if you have recently (within the past 15-20 minutes) used mouthwash or a breath spray containing alcohol.
Ricci Branca was a south Jersey teen who was riding his bicycle with friends when he was struck and killed by a drunk driver. Two of the other cyclists were injured. The drunk driver, who'd had at least 10 drinks before getting behind the wheel and who had a BAC of over .30, is now serving a 16-year sentence for aggravated manslaughter and related charges.
An ignition interlock device is a mechanism installed into a vehicle's dashboard. It works like a breathalyzer, and prevents the vehicle from starting if a BAC (blood alcohol concentration), usually between .02 and .04 is registered. Many studies have shown that interlock devices assist to prevent drunk driving and are effective in combating repeat offenses of DWI. I am not going to dispute those studies, although the device is not foolproof and requires maintenance.
The DWI statute in NJ, as it stands now, provides that a judge may order the installation of an ignition interlock device for six to twelve months for first offenses. For second, third, and subsequent offenses, judges must order the installation of an interlock device for one to three years or suspend all license plates and registration certificates for two years (for a second offense) or ten years (for a third or subsequent offense).
Those registration suspensions run concurrently with the required license suspension of the offender; two years for a second offense, and ten years for a third, and affect only vehicles owned by the defendant or registered to him. They are a current alternative to the installation of the interlock device.
With the revision, the bottom first-offense tier would not be altered. A person convicted of DWI with a BAC of at least .08 but less than .10 would be subject to the same penalties as previously.
However, a first-offense DWI conviction with a BAC of .10 or higher would now require the installation of an interlock device in the vehicle principally operated by the offender, no matter who the owner.* The installation would be required for six to twelve months after the period of drivers license suspension expires.
A first-offence DWI conviction with a BAC of .15 or higher has the same requirement, except that the installation must occur during the period of license suspension and extend six to twelve months thereafter.
For a second DWI conviction, the judge's option to suspend a person's registration for two years concurrent with the required license suspension would be eliminated, and the interlock installation during the two-year period of license suspension and for one to three years thereafter would be required.
For a third DWI conviction, the judge's option to suspend a person's registration for ten years concurrent with the required license suspension would be eliminated, and the interlock installation for the ten-year period of suspension and for one to three years thereafter would be mandatory.
Note: This new interlock requirement will also apply to convictions for refusal to submit to a breath test.
*This means that if a vehicle you own and which is registered to you and used by you is also the principal vehicle of your spouse, parent, child, sibling, roommate, friend, partner, girlfriend, or boyfriend your vehicle will require the installation of the device and you will be required to use the device to start your ignition for the entirety of the period of installation, anywhere from six months to thirteen years. Be careful! This means that the vehicle may not start if you (the non-offender owner or driver of the vehicle) are using it and have a glass of wine or a beer with dinner. These interlock devices are sensitive and will also register a BAC if you have recently (within the past 15-20 minutes) used mouthwash or a breath spray containing alcohol.
Saturday, January 9, 2010
DWI, Refusal, and New Sentencing Problem
State v. Ciancaglini, January 7, 2010 - A discussion
[Full text of the decision here.]
The facts in brief: The defendant was stopped for traffic offenses in May of 2008. After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.
The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.
The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties. She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction. Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute. She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.
At this time, the defendant has already served the thirty-day jail sentence.
The issues: Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated? Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?
The court's holidng: Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.
The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself. You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.
While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal. On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions. On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.
While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.
Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases. However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.
For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.
Therefore, the defendant's September 2008 conviction for DWI was her third offense.
The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.
Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case. The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.
Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.
The end result: The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court. The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.
What does all of this mean to you? If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.
This may seem unjust, and I agree. You can be sentenced as a second or third offender without first been convicted of an initial DWI.
The smartest thing? Do not refuse a breath test. In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.
[Full text of the decision here.]
The facts in brief: The defendant was stopped for traffic offenses in May of 2008. After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.
The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.
The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties. She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction. Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute. She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.
At this time, the defendant has already served the thirty-day jail sentence.
The issues: Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated? Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?
The court's holidng: Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.
The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself. You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.
While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal. On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions. On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.
While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.
Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases. However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.
For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.
Therefore, the defendant's September 2008 conviction for DWI was her third offense.
The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.
Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case. The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.
Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.
The end result: The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court. The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.
What does all of this mean to you? If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.
This may seem unjust, and I agree. You can be sentenced as a second or third offender without first been convicted of an initial DWI.
The smartest thing? Do not refuse a breath test. In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.
Monday, September 21, 2009
Jail Credit
State v. Allen - A discussion
[Unpublished Decision of the Appellate Division - Decided September 18, 2009]
The facts in brief: The defendant pled guilty in Middlesex County to second-degree robbery pursuant to an agreement with the State. He was sentenced to a six-year term of imprisonment, one year less than the sentence the State recommended, subject to the No Early Release Act. Also pursuant to the plea agreement, the sentence was concurrent with a sentence the defendant was already serving in Mercer County, for another second-degree robbery. He was awarded "gap time" credits for the 97-day period between his sentencing in the two counties.
[Gap time is relevant when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, the defendant is credited at the time of the second sentence for the time of imprisonment served on the prior sentence.]
He was arrested for and confined pursuant to the Mercer County charge between January 20, 2005, and his sentencing in Mercer County on March 10, 2006, and was therefore awarded jail credits for those 415 days as time served on the Mercer County sentence. On January 28, 2005, eight days after he was arrested and confined in Mercer County, he was arrested for the Middlesex County robbery. Because he was already confined on the Mercer County charge, the judge did not award jail credits against the Middlesex County sentence.
Defendant did not appeal from the judgment of conviction, but instead filed a petition for post-conviction relief, claiming entitlement to jail credits against his Middlesex County sentence. The trial judge denied the petition.
The issues: The defendant raised five issues on appeal: (1) Should he have been given jail time credit against his Middlesex County sentence from January 28, 2005, through March 10, 2006, in addition to the 97 days' gap time? (2) Was the sentence imposed illegal? (3) Was the defendant denied effective assistance of counsel, resulting in his guilty plea? (4) Should the PCR (post-conviction relief) Court have conducted an evidentiary hearing to determine the issues raised in defendant's post-conviction relief petition? (5) Is reversal required because of the cumulative effects of the errors during the sentencing hearing and the ineffectiveness of appointed trial counsel?
The court's holding: The arguments raised in Points 2, 4, and 5 lack sufficient merit to warrant discussion. The arguments raised in Point 3 was not raised at the trial level, and therefore cound not be considered on appeal.
The trial court's decision regarding sentencing was affirmed.
The Appellate Division determined that the trial court did not err by declining to exercise discretion and award duplicate jail credits to the Middlesex County sentence that had already been awarded against the Mercer County sentence. Although neither the Criminal Code nor the Court Rules address the propriety of duplicating jail credits in this fashion, jail credits are generally understood to apply only to confinement attributable to the offense that gave rise to the sentence, and impermissible if the confinement is due to the service of a prior-imposed sentence or another charge. Because the defendant's confinement as of January 20, 2005, was attributable to the charge pending in Mercer County, the trial court's refusal to award them against the Middlesex County sentence was consistent with precedent. It also did not deprive the defendant of the benefit of his plea agreement, which was for concurrent sentencing, not sentences that would end on the same date.
The end result: The defendant had to serve his sentences as set forth by the trial judges in Mercer and Middlesex Counties, with the sentences running concurrently but the Middlesex County sentence ending at a later date than that in Mercer County.
What does all of this mean to you: If you are already in jail pending trial on two separate charges at the same time, pursuant to two separate offenses, your "time served" jail credits can only be awarded against one of the sentences, the one pertaining to the offense for which you were actually being held in custody.
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