Submitted by New Jersey DWI Lawyer, Jeffrey Hark.
State v. Simpson, decided June 30th by the Appellate Division resulting out of a plead to an amended third-degree eluding charge, and DWI. A sentence of non-custodial (no jail time) probation on the eluding charge, and third offense DWI chargers (including 6 months in jail, and a ten-year driver’s license revocation) was recommended. The defendant managed to obtain relief for his first DWI and thus became a second DWI offender for the purpose of sentencing. During resentencing the judge relied on the factors outlined in N.J.S.A. 2C:44-1 when determining aggravating and militating factors. Aggravating and mitigating factors are circumstances and defendant behavior that can increase or decrease the harshness of a sentence respectively. The judge sentenced the defendant to two years of probation, drug testing, and counseling, along with fees related to the eluding charge, and two years driver’s license suspension, and 90 days in jail.
The defendant appealed and Appellate Division agreed because the trial judge failed to apply Moran factors at sentencing. The factors include:
- the seriousness of underlying offense (nature, circumstances, high risk of danger to public or property)
- driver record
- defendant’s attitude
- risk of recurrence
- hardship to the defendant or any dependants of the defendant that would result from a license revocation or suspension
A recent case from 2014, State v. Palma, requires judges to utilize the above factors when sentencing Title 29 offenses. The reason for this is based on the fact DWI violations and other vehicle violations are not truly “criminal.” They are treated as quasi-criminal violations only because custodial sentences can be carried out in response to some of them. In this case the matter was remanded for resentencing.