"Do the right thing. It will grafitfy some people and astonish the rest." - Mark Twain

Do The Right Thing

A proposed senate bill would create a diversionary program for certain defendants charged with DWI; is adopting it the right thing to do?

By Peter Lederman, Esq.

Published in the New Jersey Law Journal

Do the right thing! That’s what is expected of us. It’s not always the easiest thing to do. Sometimes it’s the hardest thing to do. Doing the right thing though has its rewards, because well, it is the right thing! Mark Twain reminded us, “do the right thing. It will gratify some people and astonish the rest.”

Doing the right thing has something to do with proposed legislation in the form of Senate Bill 404 which will amend N.J.S.A. 39:4-50, our Driving While Intoxicated law. Now, I can think of many ways to change current DWI laws, to improve the quality of justice and encourage diminished incidents of dangerous driving after excessive consumption. Frankly, others have done so as well. Many proposed changes appear as pending Bills before either the New Jersey Assembly or Senate. To my count, there are already forty six Bills that have been offered as of February 5th of this year. Consider this number in light of the fact that the legislative session for 2016-2017 only began about a month or so ago. Undoubtedly, many more will be presented as the Legislature continues its work during this Session.

Senate Bill 404 is entitled “An Act concerning diversionary treatment for certain intoxicated drivers and supplementing Title 39 of the Revised Statutes.” The title to the proposed legislation goes on to say that it “ Establishes diversionary program for certain defendants charged with driving while intoxicated. “ The Bill sponsored by Senator Peter J. Barnes, creates a sentencing alternative for courts after defendants have plead or been found guilty of Driving While Intoxicated or Refusal to Submit to Breath Testing.
The Bill, if enacted creates an opportunity for defendants charged with first offenses to have a second chance. I remember Superior Court Judge Glenn Berman saying in a presentation I attended, that you don’t get a second chance to make a first impression. Here, defendants, in the right situation, will get a second chance, just like defendants charged with crimes in the Pre Trial Intervention program and marijuana possession charges in the Conditional Discharge program.

PTI and Conditional Discharge are based on the premise that we all make mistakes. Yes, it is true, to err is human. Making mistakes is a basic condition of our existence. We try not to make mistakes but we all make them. I am often amused reading police reports in DWI cases which are replete with text mistakes about how my client made mistakes in performing field sobriety tests. But that is a story for another day.

Good people make mistakes as well. Really good people make mistakes, people with great pasts and great futures, people who have made a difference and people who will make a difference in the future, people with great driving records, even people with healthy drinking habits and no substance abuse problems. They simply make a mistake, one time. By the way, this is not to say that other people with less stellar pasts and futures, should not be entitled to a second chance as well.

The fact of the matter is that a conviction for DWI is like a tattoo. It never goes away! I just had a client tell me that a good job offer was withdrawn when the subsequent background search revealed a DWI conviction. It made no difference that the conviction had occurred some time ago and the client had otherwise stellar qualifications for the six figure job. This is not unusual in this day of easily accessible information and a competitive job market.
The obvious argument against diversion of DWI cases is that bad things happen when people abuse substances like alcohol and then operate cars. I tell clients all the time that there is no equation which can balance excessive consumption of alcohol or other drugs and the horrific things that can happen when impaired operation of a vehicle follows. I get it.

The point though, is that not all DWI cases are the same. As our Supreme Court recognized in State v. Moran with regard to sentencing in reckless driving cases, the court must consider aggravating and mitigating factors before it can sentence a defendant charged with that offense. The same type of consideration must be undertaken in sentencing for all 2C violations. The simple point is that a driver whose violation lacks aggravating factors, should not be sentenced the same as the worst DWI offender.

Just as people are less than perfect, so I believe is the present language in S 404. The text of the proposed law identifies eligibility criteria for admission into the diversionary program. This language should be expanded to reflect factors similar to those identified in Moran, which are more detailed and provide more direction to the court in determining whether a diversion should be granted. The considerations in the proposed law are vague, general and provide little help in determining which offenders should be entitled to a second chance. Without clarity in this regard, almost every DWI offender might anticipate diversion, just at the time he or she was making the decision whether to drive after a night of drinking. Wrong message, wrong result!

In the end, many attorneys who defend drivers charged with DWI will oppose this legislation. This is because DWI defense is an important part of their practice and first offenders comprises the largest segment of their clients. That’s where “doing the right thing” comes in. Some lawyers will oppose this legislation because it will hit them in the pocket book. But it is the right thing!

It will be interesting to see where this goes. If enacted, think of what Twain said. Many will be gratified, the rest astonished!

Reprinted with permission from the February 2016, issue of the New Jersey Law Journal. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.