Defendant Not Obligated to Disclose Prior DWI Conviction, According to New Jersey Appellate Court

A New Jersey appellate court recently considered the question of whether a defendant must inform the court of prior convictions that, under New Jersey law, could result in an enhanced sentence. In an unpublished February 2015 decision, State v. Kane, the court ruled that a defendant charged with driving while license suspended (DWLS) was not obligated to inform prosecutors or the court that the suspension was due to a driving while intoxicated (DWI) conviction. State motor vehicle and criminal statutes include enhanced penalties in certain DWLS cases where DWI was the reason for the suspension. The court rejected the state’s arguments that the defense’s failure to provide this information constituted fraud and a breach of attorney ethics rules.

The defendant was arrested in January 2012 in Ocean City for talking on a cell phone while driving. She was subject to a 10-year suspension of her driver’s license at the time, according to the court, because of multiple DWI convictions. She pleaded guilty to DWLS in municipal court that March. DWLS is normally a “non-indictable offense,” and the judge sentenced her to 30 days in jail, to be served intermittently.

New Jersey law prescribes enhanced penalties for a DWLS if the underlying reason for the license suspension is a DWI offense. About seven months before the defendant’s plea, in August 2011, a new criminal statute became effective that made the defendant’s DWLS offense an indictable offense, with substantially greater penalties. The statute allows prosecution of DWLS as a fourth-degree crime, as opposed to a traffic offense, if the license suspension was due to DWI, and the defendant has one or more prior DWLS convictions.

The defendant’s attorney withdrew her guilty plea, apparently with her consent, five days after the plea. She was indicted, pleaded guilty, and received the mandatory minimum sentence of 180 days in jail. She appealed, and the Appellate Division ruled in 2013 that she had raised several colorable claims regarding the withdrawal of her plea. Without the withdrawal of the DWLS guilty plea, the Sixth Amendment’s Double Jeopardy Clause would have prevented the indictment. The appellate court remanded the case to the municipal court. After further proceedings, the state appealed. It claimed that the defendant’s counsel should have notified the municipal court and the prosecutor about the prior convictions, which would subject the defendant to indictment.

The appellate court ruled in the defendant’s favor on the question of whether she was obligated to inform the court and prosecutors of her prior convictions. The court distinguished this case from a 2004 New Jersey Supreme Court decision, In re Seelig, which held that an attorney has a duty to disclose “material facts” to a court when those facts are part of the public record. Seelig, the court noted, involved an affirmative effort to mislead a judge about the facts of a case. In Kane, the municipal prosecutor acknowledged that it was his responsibility to investigate the defendant’s conviction history. The court vacated the second conviction and reinstated the original DWLS conviction and 30-day sentence.

DWI attorney Evan M. Levow fights for the rights of people in New Jersey who are facing charges that could have a substantial impact on their lives. We have dedicated 100% of our law practice at Levow & Associates to defending DWI cases, and we are available 24/7 to help you. To schedule a free and confidential consultation with a knowledgeable and skilled advocate, contact us online or at (877) 975-3399.

More Blog Posts:

Proposed Legislation Would Bar Alcohol Purchases After DWI Arrests, New Jersey DWI Attorney Blog, January 23, 2015

New Jersey Supreme Court Rules that “Step-Down” Provision in State’s DWI Law Is Not Limited to One Use, New Jersey DWI Attorney Blog, January 10, 2015

Second or Third DWI Convictions in New Jersey Do Not Always Result in Enhanced Penalties, New Jersey DWI Attorney Blog, August 1, 2014

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