In a published opinion dated February 9, 2011, Judge Mitchel E. Ostrer, Superior Court of New Jersey, Law Division-Criminal Part, Mercer County, in State v. Henry provides guidance regarding custodial jail sentences imposed for driving while intoxicated, N.J.S.A. 39:4-50. A term of incarceration may be imposed for DWI/DUI for a first time offender up to 30 days in jail, for a second time offender up to 90 days in jail, and for a third time offender a mandatory 180 days in jail.
The Judge concluded for DWI jail sentencing, "that it should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes, N.J.S.A. 2C:44-1. Even if the factors are not mandated, they provide appropriate guides for the court's exercise of discretion." There may also be "additional relevant factors, in deciding whether to impose a sentence of imprisonment, and the length of such sentence."
In citing State v. Moran, 202 N.J. 311 (2010) and providing additional factors from the Criminal Code, the court's opinion listed the following aggravating and mitigating factors:
Aggravating factors:
1. The nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public.
2. The defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions.
3. Whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation.
4. The need for personnel deterrence.
5. Prior criminal record and the seriousness of the offenses of which he has been convicted.
6. Extreme blood alcohol level ("BAC").
Mitigating factors:
1. Whether defendant's conduct caused physical harm or property damage.
2. Whether the defendant was infraction-free for a substantial period before the most recent violation.
3. Whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation.
4. Whether the defendant's conduct was the result of circumstances unlikely to recur.
5. Whether incarceration would cause excessive hardship to the defendant and/or dependants.
6. Whether the defendant did not contemplate that his conduct would cause or threaten serious harm.
7. There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense. This includes alcoholism.
8. The defendant is particularly likely to respond affirmatively to probationary treatment.
9. The willingness of the defendant to cooperate with law enforcement.
10. The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.
It is important to review these factors with an experienced criminal defense attorney if you are facing the possibility of jail time for driving while intoxicated.
As a former municipal prosecutor, public defender and private criminal defense attorney, Carmine R. Villani has handled hundreds of DWI cases from both the prosecution and defense side.
