New Jersey DWI Attorney Blog

As a New Jersey DWI defense attorney, I always review my client's prior convictions to determine which, if any, can be overturned or to determine if the effect of the conviction can be minimized for sentencing issues in the current pending case. I have written in this blog quite a bit about New Jersey Post Conviction Relief, or PCR, practice, because it is so important in the assessment of an alleged multiple offender's case.

A case that was recently decided by the Appellate Division in New Jersey, State v. Weil (decided July 5, 2011), outlines the PCR process and what is needed to seek relief from the courts.

Petitions for PCR must be filed in the court where the original conviction occurred. In a case called State v. Bringhurst, the Appellate Division stated that the time limit for filing a PCR petition in a DWI case could be relaxed from the general five year rule, since the prior conviction would "be of no moment unless and until there was a subsequent DWI conviction." If the prior conviction is more than five years old, the defendant has to establish that any delay in filing was not the result of neglect or some other disqualifying reason. In relaxing the time limitation, the court will consider the extent and cause of the delay, whether there is any prejudice to the State, and the importance of the claim.

The petitioner has to allege facts to establish relief in a written petition. Specifically, the petitioner has the burden of proving that he or she did not have notice of the right to counsel in the prior case. He has to demonstrate that he was prejudiced by being unaware of those rights, and if indigent, would have benefited from the notice by seeking counsel. A non-indigent defendant additionally must show that the lack of notice affected the outcome of the case.

The defendant in the recently decided Weil case was not successful in her argument to obtain relief. There was evidence that she did receive notice of her right to counsel in her 1994 case based on notations on the original tickets that were maintained by the original municipal court. She also did not explain why she waited sixteen years to seek relief.

It is critical to hire a qualified New Jersey DWI defense lawyer to fully review all aspects of your case, including your prior convictions. Failure to review prior convictions can result in significant lost opportunities in the present pending matter.

If you are a third or greater alleged DWI offender in New Jersey, you are looking at mandatory 180 days in jail. Certainly, the best form of relief is to fight and win the current case. Otherwise, the only way to avoid jail if you are convicted is to seek "Post Conviction Relief" (PCR) from your prior convictions.

As a DWI lawyer in New Jersey, when I am representing a client with a pending third offense, I always review the prior convictions to see whether relief can be obtained from the prior courts in one of two ways:

• Seeking to vacate the prior conviction altogether, based on constitutional errors by the judge, prosecutor, or defense attorney, and then starting the case from scratch to try to win the prior DWI/DUI completely; or
• Seeking an order from the old court stating that the conviction cannot be used to put my client in jail in the current matter, based on errors that I alleged from the original proceedings. The conviction still stands, and it won't reduce the license suspension, but it cannot be used to put my client in jail in the pending matter.

However, Enright essentially says that to obtain relief from jail, the client had to be unrepresented by counsel at the time of the original plea. Otherwise, if the client was represented, then the first option must be sought -- attempting to reopen the case altogether and trying to win the older case outright. While this is harder to do, it can be done in the right circumstances.

I routinely review any prior convictions for my clients. I always advise clients whether there are any options for Post Conviction Relief.

If you have prior convictions, and you are facing a current DWI charge, make sure that the lawyer you are talking to discusses PCR issues with you. If the subject of PCR doesn't come up in your initial conversation with a New Jersey DWI attorney you are interviewing, you may want to seek another opinion on how your case can be handled.