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.
Until State v. Enright was decided in October 2010, that second manner of relief was very often attainable. The old courts recognized that error in the old case provided good reason to grant relief, and keep people out of jail.
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.