New Jersey's Drunk Driving (DWI/DUI) Statute (Statute), authorizes the imposition of harsh penalties for repeat offenders.  A second offender can receive a mandatory term of imprisonment of not less than 48 consecutive hours nor more than 90 days.  A third offender will be required to serve a mandatory term of imprisonment of 180 days.

Almost twenty years ago, New Jersey Supreme Court held that a prior conviction for drunk driving (DWI/DUI) case could not be used to enhance the penalties of a subsequent drunk driving (DWI/DUI) conviction if the prior conviction occurred without the assistance of a lawyer or an express waiver from the defendant as to his/her right to a lawyer.  This remedial rule only applied to the defendant's exposure to a jail term.  Thus, if the defendant was a second offender, with a prior uncounselled conviction, the trial court can only impose a first offender jail term.  All other penalties, including fines, administrative surcharges and llicense suspensions can be imposed as if the defendant was a second offender.

In order to obtain the benefit of an uncounselled prior conviction, a drunk driving (DWI/DUI) defendant has the burden to establish that he/she was not given appropriate advise as to his/her right to counsel or an assignment of counsel if he/she could not afford one.  In order to obtain the benefit of this rule, the application must be made before the municipal court where the prior conviction occurred.