Felony DWLS Conviction Overturned by New Jersey Appellate Court

By Famartin (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsA conviction for driving while intoxicated (DWI) in New Jersey usually results in a driver’s license suspension, with the length of time varying based on the defendant’s blood alcohol content (BAC) and number of prior convictions. Driving while license suspended (DWLS) is a separate traffic offense under New Jersey law, which rises to the level of a felony criminal offense in certain circumstances. The New Jersey Superior Court, Appellate Division issued an important ruling recently in State v. Diaz, reversing a criminal DWLS conviction based on the underlying reason for the defendant’s license suspension.

DWLS is a fourth-degree criminal offense in some situations, with a mandatory minimum jail sentence of 180 days. This provision became effective on August 1, 2011. It applies in two situations, described in § 2C:40-26 of the New Jersey Revised Statutes. These are when the defendant has a prior conviction for DWLS, which occurred during a period of suspension for a DWI conviction, or when the defendant’s current license suspension is due to a second or subsequent DWI conviction.

In the Diaz case, the defendant was arrested in August 2013 and charged with DWI, DWLS, and several other offenses. According to the court’s opinion, the defendant’s driving record showed two prior DWI convictions and three DWLS convictions. The DWI convictions occurred in March 2008 and April 2009. The April 2009 case also included a DWLS conviction. The other DWLS convictions were in January 2011 and February 2013. The timing of the various suspensions was critical to determining whether the defendant committed criminal DWLS, or merely a traffic offense, in August 2013.

In the 2009 case, the municipal judge imposed a two-year license suspension for a second DWI conviction, and a one-year suspension for the DWLS conviction. This took place on April 1, 2009, meaning that the suspension ended on April 1, 2012. The defendant, however, did not take the necessary steps to reinstate his driver’s license, resulting in the February 2013 DWLS conviction. After the August 2013 arrest, the state charged him with criminal DWLS under § 2C:40-26(a) for having a prior DWLS conviction during a period of license suspension due to DWI.

Prosecutors could only consider convictions occurring after the criminal DWLS statute’s August 2011 effective date. They argued that the defendant’s February 2013 DWLS conviction, based on a January 2013 arrest, occurred during a period of suspension resulting from the defendant’s April 2009 DWI conviction.

The municipal court denied the defendant’s motion to dismiss the indictment. It held that, even though the three-year license suspension ended in April 2012, the defendant’s license was still suspended because of the DWI in January 2013. In support, it cited a 1987 Appellate Division case, State v. Zalta, which held that a license suspension for DWI that continues past its expiration, due to the driver’s failure to reinstate driving privileges, is still a license suspension due to DWI.

The Appellate Division reversed the lower court rulings and vacated the conviction. It found that a decision issued in March 2015, State v. Perry, had overruled Zalta by holding that criminal DWLS charges may only be brought for offenses that occur during the original suspension period. It held that the Perry rule should apply in the defendant’s case, meaning that the portion of the defendant’s license suspension due to DWI ended in April 2012.

Evan M. Levow fights for the rights of people who are facing charges of alleged DWI in New Jersey courts. At Levow DWI Law, we have dedicated our entire law practice to DWI defense. To schedule a free and confidential consultation to see how we can help you, contact us online or at (877) 975-3399. We are available 24/7 to assist you.

More Blog Posts:

Courts Rule on Mandatory Sentencing in Certain New Jersey DWLS Cases that Involve DWI Charges, New Jersey DWI Attorney Blog, May 31, 2015

Out-of-State DWI Convictions Count as Prior Convictions in New Jersey DWI Cases, Appellate Court Holds, New Jersey DWI Attorney Blog, April 9, 2015

Defendant Not Obligated to Disclose Prior DWI Conviction, According to New Jersey Appellate Court, New Jersey DWI Attorney Blog, March 18, 2015

Photo credit: By Famartin (Own work) [CC BY-SA 3.0], via Wikimedia Commons.