To avoid jail for 3rd DWI offenses, Post Conviction Relief may be the only option

       Because the penalties for second and third DWI offenses are so harsh, it often makes sense for an attorney to challenge the validity of prior convictions-- especially if the pending drunk driving charge is difficult or impossible to defend.  This challenge of prior convictions is commonly called post conviction relief or PCR.

       In New Jersey, for example, a third offender must be sentenced to 6 months in jail with very few exceptions.  One exception is day-for-day credit, up to 90 days, for in-patient alcohol rehabilitation.  However, 90 days of incarceration must first be served before becoming eligible for rehab credit.

       So, the attorney typically goes back in time and looks for ways to challenge any previous guilty plea.  He or she looks for: 1.) pleas without an attorney; 2.) pleas that were taken quickly after an arrest; and 3.) pleas that were taken by a judge without the defendant having been fully advised of legal rights or without a complete admission to the DWI offense.

       If a prior conviction can be "undone" or vacated, then the penalties for the new offense may not be enhanced to the level of a 2-10 year loss of license and/or extensive jail time.  It is, however, difficult for an attorney to prevail, unless it can be shown that a defendant's constitutional rights were violated.

       A common compromise that lawyers try to achieve is to get an order from a court that essentially says: "the prior conviction is not undone, but the offender should not be jailed for a third offense."  Typically, the court rationalizes that jail should not apply if constitutional rights were previous violated.

Comments

[Mark C Brown]

A fourth drunk driving offense within ten years is considered as a felony. You not only have to face a jail sentence of up to 3 years but also pay a fine of not less than $14,000.

[Robert J. Smith, Esq.]

In New Jersey, perhaps unlike Texas, third and subsequent offenses are treated the same. They are never considered criminal, felonies or indictable charges. For those charged, the upside is no further enhancements, but many lawyers here would strongly prefer the right to a jury trial.

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