Articles Posted in Post Conviction Relief

The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

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Under the laws of the state of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense rather than a criminal offense. While a DWI conviction can result in serious penalties, including the possibility of jail time, the New Jersey court system does not deal with DWI cases in the same way it handles most criminal cases. A defendant in a New Jersey DWI case, for example, does not have the right to a trial by jury as described in the Sixth Amendment to the U.S. Constitution. DWI is considered a “petty” offense, and therefore it is not covered by all of the provisions of the Bill of Rights that apply in criminal cases. Most other rights, like the Fourth Amendment’s protection against unreasonable searches and seizures and the Sixth Amendment’s right to confront one’s accuser, still apply in DWI cases. Understanding which courts may consider DWI prosecutions and appeals, and how they are allowed to consider them, is important when planning a defense against DWI charges.

Municipal courts have original jurisdiction over DWI cases under Rule 7:1 of the New Jersey Rules of Court (NJROC). The municipal court judge handles all pretrial motions and other matters, and presides over the trial if one occurs. The judge will render a verdict and decide on a sentence. Several levels of appeal are available after a conviction in municipal court. If a person seeks post-conviction relief, however, NJROC 7:10-2 requires them to file a petition in the municipal court where the conviction took place.

Appeals from a municipal court conviction go to the Superior Court, Law Division. NJROC 3:23 requires a defendant to file a notice of appeal within 20 days of their conviction. The Law Division, upon receiving a transcript from the municipal court, may reverse the conviction and remand the case to the lower court, or it may conduct a trial de novo. While the Law Division is not bound by the municipal court’s findings of law or fact, it must “give due…regard to the opportunity of the [municipal court] to judge the credibility of the witnesses,” according to the New Jersey Supreme Court 1964 ruling in State v. Johnson.

New Jersey law regarding driving while intoxicated (DWI) imposes progressively harsher penalties for multiple convictions. A defendant might not face heightened penalties, however, through “step-down” provisions in New Jersey statutes and caselaw. If enough time passes between convictions, a second offense might be treated as a first offense for sentencing purposes. A step-down might also apply in other situations, such as if a prior conviction involved a guilty plea without representation by an attorney. Convictions that have been modified through the post-conviction relief (PCR) process may also be subject to a step-down. Courts must weigh a wide range of factors in determining how to sentence a second, third, or subsequent conviction. The Appellate Division took on several of these factors in a recent decision, State v. Terpstra.

The New Jersey DWI statute imposes increasingly harsh sentences for second DWI offenses and third or subsequent offenses. The statute directs courts to treat a second conviction as a first conviction, for the purposes of sentencing, if the first offense occurred over a decade before the second. Likewise, if a third offense occurs more than 10 years after the second, the court shall sentence it as a second offense. The relevant date is when the offenses occurred, rather than the convictions.

Representation by counsel in prior DWI cases may also affect whether the step-down provisions apply. In 1990, the New Jersey Supreme Court issued an important ruling, State v. Laurick. The court held that courts may not impose sentencing enhancements if a prior conviction involved a non-counseled guilty plea. In other words, a second DWI conviction must be treated as a first at sentencing if the defendant pleaded guilty in the first case without a lawyer. A third offense would be sentenced as a second.

Post-conviction relief (PCR) allows a defendant to challenge a conviction even after the time period to file an appeal has passed, provided they can assert certain grounds for doing so. Under New Jersey law, a PCR petition must allege a significant violation of a defendant’s legal or constitutional rights, rather than just an error by a lower court. If a defendant can establish a violation of their rights, the court may order a new trial, modify the sentence, or, if the defendant is incarcerated, order their release. A recent decision by the New Jersey Appellate Division, State v. Cooper, considered a claim for post-conviction review in a driving while intoxicated (DWI) case, based, in part, on a claim of insufficient evidence. Specifically, the defendant’s blood alcohol content (BAC) test results were below the legal limit, and the defendant argued that the remaining evidence did not support a finding of guilt.

New Jersey municipal courts have original jurisdiction over DWI cases, so that is where defendants must file petitions for PCR. Rule 7:10-2 of the New Jersey Rules of Court governs PCR procedures. It identifies several possible grounds for PCR, including any ground that could be raised to challenge a conviction “by habeas corpus or any other common law or statutory remedy.” This catch-all category covers a wide area of law. In Cooper, the defendant challenged the sufficiency of the evidence but did so by alleging that his counsel at trial was ineffective.

Prosecutors can offer evidence that a defendant operated a vehicle while under the influence of drugs or alcohol in several ways. State law defines DWI to include driving with a BAC of 0.08 percent or higher, but the state can also use testimony by police officers who witnessed the defendant’s behavior during and after their arrest, and who have training in identifying signs of alcohol intoxication. Some New Jersey police departments also employ officers trained in recognizing the physical indicators of drug use. The reliability of such testimony, especially with regard to drugs, is often contested at trial.

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In criminal prosecutions, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. This is an intentionally difficult burden, designed to protect the rights described in the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. Although driving while intoxicated (DWI) is a motor vehicle offense in New Jersey, rather than a criminal one, most of these protections apply in DWI cases. Defendants can challenge the admissibility or sufficiency of the state’s evidence before or during trial. They can also challenge evidence on appeal or in a motion for post-conviction relief (PCR), especially if new information becomes available. Recent allegations of records tampering against an officer of the New Jersey State Police may create ample opportunities for such challenges, since the allegedly fraudulent records potentially affect 20,000 DWI cases statewide.

The New Jersey Rules of Evidence govern the use of evidence in court proceedings. One of the most important rules involves statements made outside the presence of a judge or jury, which are known as “hearsay.” A statement is considered inadmissible hearsay when it is “offered in evidence to prove the truth of the matter asserted.” In plain English, a police officer can testify about their own personal observations of the defendant but not about statements made by other people. Public records kept in the ordinary course of government business, such as reports generated by an Alcotest device, are generally excepted from the hearsay rule. This exception, however, is subject to some exceptions of its own.

A 2007 decision by the New Jersey Appellate Division, State v. Kent, addressed the use of documentary evidence in a DWI case. The court held that a chemist report describing the results of a blood test is inadmissible at trial if the defendant does not have the opportunity to cross-examine the individual who prepared the report. The case drew on the Supreme Court’s 2004 ruling in Crawford v. Washington, which addressed the admissibility of written statements or reports that are deemed “testimonial” and therefore subject to the hearsay exclusion.

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New Jersey laws regarding driving while intoxicated (DWI) include the act itself and multiple related offenses, including driving while one’s license is suspended (DWLS) and refusal to submit to breath testing. State law imposes harsher penalties for second and subsequent offenses, but it also mitigates these penalties in some situations. Merely having prior convictions therefore does not necessarily mean that a defendant must receive an enhanced penalty. A decision from the New Jersey Appellate Division in September 2015, State v. Jones, involved a defendant with a particularly complicated history of prior convictions. This made determining a proper sentence quite difficult.The Jones case involves all three types of offenses commonly associated with DWI:  DWI itself, DWLS, and refusal. DWI and refusal are both considered traffic offenses under New Jersey law rather than criminal offenses. The penalty for a first-time DWI offense is based, in part, on the defendant’s blood alcohol content (BAC). A second offense may involve a higher fine, a jail term, and the installation of an ignition interlock device, regardless of BAC. For a third or subsequent offense, the potential fine and jail term are even higher, also regardless of BAC. A DWI at any level leads to a mandatory period of a driver’s license suspension. DWLS can become a criminal offense in certain situations, partly based on the number of prior DWI convictions, with a mandatory 180-day jail sentence.

New Jersey courts have established certain requirements for guilty pleas in DWI cases, largely due to the potentially unforeseen consequences of pleading guilty with prior convictions. One very important rule, established by the New Jersey Supreme Court in 1990 in State v. Laurick, states that a prior conviction may not be used to enhance a subsequent jail sentence if the prior conviction violated a defendant’s constitutional rights. The most common way defendants use this rule is when they did not have counsel for a prior guilty plea. Another case from the New Jersey Supreme Court, 1989’s State v. Barboza, established minimal standards for the entry of a guilty plea by an uncounseled defendant.

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After a conviction for driving while intoxicated (DWI), New Jersey law provides defendants with several means of challenging the verdict, or the process leading to that verdict. The appellate process, by which a defendant appeals the municipal court conviction to a higher court, has strict rules regarding grounds for appeal and filing deadlines. Post-conviction relief (PCR) takes place in the same court as the conviction, under the same case number. PCR bears some similarities to habeas corpus, particularly in the sense that it does not have the same time limits as an appeal. Under New Jersey law, a petition for PCR is the proper method for raising certain claims, while other claims can only be raised in an appeal. A recent Appellate Division decision, State v. Grabowski, addresses some of these differences.

The rules governing PCR petitions are found in the New Jersey Rules of Court (NJROCs). Different rules govern PCR petitions in criminal cases and traffic cases, which are typically heard in the Law Division of the Superior Court and in municipal court, respectively. DWI is a traffic offense under New Jersey law, not a criminal offense. The procedures for PCR are similar under both rules. Rule 3:22 of the NJROCs governs PCR in criminal cases, while Rule 7:10-2 governs PCRs in municipal court.

The deadline for filing an appeal in a New Jersey court is typically between 20 and 45 days after the order or judgment. Under Rule 7:10-2, a DWI defendant may file a petition for PCR up to five years after the conviction. If the purpose of the PCR petition is “to correct an illegal sentence,” or if the defendant can show that the failure to file within five years “was due to the defendant’s excusable neglect,” the five-year deadline does not apply. Both Rule 7:10-2 and 3:22 state that PCR “is not a substitute for appeal from a conviction,” and that a defendant cannot file a PCR petition during the time period when they could still file an appeal.

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Post-conviction relief (PCR) is a critically important procedure in many types of cases in New Jersey, including—and perhaps especially including—convictions for driving while intoxicated (DWI). Courts can use prior DWI convictions as grounds for enhancing penalties for a current DWI conviction. This is where PCR often plays an essential role.

Grounds for Relief

Numerous possible grounds exist for PCR, including:

– The defendant’s guilty plea did not meet the requirements of the New Jersey Rules of Court. Rule 7:6-2(a) states that a municipal court, before accepting a guilty plea, must determine that the defendant is voluntarily making the plea, and that the defendant understands the charges and the consequences of pleading guilty. The defendant must also state a “factual basis” for their guilty plea.
– The defendant was unrepresented by counsel, and the court did not make a finding on the record, as required by Rule 7:6-2(a), that the defendant had “knowing[ly] and intelligent[ly]” waived the right to counsel.
– The defendant received ineffective assistance of counsel.
– The DWI trial, and/or the conviction and sentence, violated the defendant’s rights under the U.S. Constitution, the New Jersey Constitution, or New Jersey law.
– The sentence imposed by the court was illegal. This last ground for PCR merits additional examination.

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A New Jersey DWI defendant will get a new trial 11 years after he entered a guilty plea. The Superior Court, Appellate Division ruled in State v. Aratow that his 2004 plea did not meet several constitutional requirements set out in the New Jersey Rules of Court. The defendant filed a petition for post-conviction relief (PCR) in 2011 in connection with a new DWI charge, seeking review of the 2004 plea. The court held that the record did not support the lower courts’ findings that the defendant pleaded guilty in 2004 with a full understanding of the consequences, nor did the municipal court establish all of the facts required to sustain a DWI conviction. It reversed the lower court rulings and remanded the case to the municipal court for trial on the original charges.

The defendant received his first conviction for driving while intoxicated (DWI) in November 1988. He was charged with DWI a second time in February 2004, and he appeared pro se in municipal court that April. The municipal judge questioned the defendant about his right to counsel and his decision not to have an attorney present. The judge stated that, since the defendant’s first DWI conviction was over a decade old, the court would treat this as a first offense. The defendant stated, under oath, that he drank about three vodka and tonics on the night of his arrest and that he wished to plead guilty. The court entered the plea at that time.

In June 2009, the defendant was charged with DWI again. He pleaded guilty in June 2011, but the court treated it as a third offense and sentenced him to a 10-year license suspension and 180 days in jail. It stayed the jail sentence so that he could file a PCR petition. In the petition, the defendant claimed, in part, that his 2004 guilty plea did not meet certain constitutional standards.

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The defendant in a DWI case appealed the denial of his motion for post-conviction relief (PCR), which the municipal court and the Superior Court, Law Division said was not filed in a timely manner. He claimed that he was not aware of his right to bring a motion for PCR, and he noted that he was not represented by counsel in his earlier DWI case. These factors, he argued, constituted “excusable neglect,” which would allow a court to waive the usual five-year deadline to bring a PCR motion. The Appellate Division disagreed, finding in State v. Reese that a lack of knowledge of the law does not excuse a late filing. The court’s decision underscores the importance of retaining knowledgeable counsel at the earliest stage of a DWI case.

The original DWI case began in August 1983, when the Hammonton Municipal Court issued a summons for driving while intoxicated and driving while license suspended. The defendant failed to appear at the September court date but called the court prior to the rescheduled court date that October. The court postponed the case several times in 1983 and 1984. It issued a bench warrant for failure to appear in March 1984, but when police tried to serve the warrant, they noted that the defendant no longer lived at his address on file.

The case remained inactive until May 1991, when the defendant tried to restore his driver’s license at the Department of Motor Vehicles and was informed that a case was pending against him in Hammonton. He appeared in court shortly afterwards without an attorney. He claims that he did not waive his right to counsel, and the court did not advise him of his right to a court-appointed lawyer. An entry on the back of the summons says that he was “advised as to rights” and then simply has the notation “waived.” The defendant pleaded guilty to the DWI charge.

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