Staying out of Jail on a Third DWI Offense: Patel & Laurick

You are charged with a third offense DWI – is there anyway to avoid the 180 day mandatory jail term? Under a 1990 New Jersey Supreme Court decision, State v. Laurick, an uncounseled guilty plea cannot be used against a defendant for the purposes of an enhanced custodial sentence. What that means is that if you pled guilty to one of your first two DWIs, and did not have an attorney and never were advised of your right to an attorney, on a third offense DWI you cannot be sentenced to the 180 days in County Jail.

The only way to assert this right is to file a Motion for Post Conviction Relief in the Municipal Court in which you were originally convicted. Unfortunately, many Municipal Court Judges have been reluctant to grant these motions and were imposing very high standards on the granting of these motions.

Most recently, the NJ Supreme Court re-emphasized and elaborated on the requirements of a Laurick motion. In State v. Patel, the Defendant had a 1994 DWI where he alleges that he was indigent and was not advised as to his right to a public defender. He sought to have that uncounseled guilty plea be the basis of his non-incarceration on the subsequent DWIs.

A non-indigent defendant (one who could have afforded a lawyer back when the original plea was entered) must show that was not advised or did not know of his right to counsel and had he known his right to counsel, he would have retained an attorney. An indigent defendant in an earlier uncounseled guilty plea must establish that he was not advised and did not know of his right to appointed counsel and that he was entitled to the appointment of counsel through the applicable financial means test, R. 7:3-2(b). He must further show had he properly been informed of his rights, he would have accepted appointed counsel.

In all cases since 1971 the Municipal Court Judgement of Conviction should contain a notation from the Municipal Court that the proper notice had been given and there was a knowing, intelligent, and voluntary waiver of counsel. See Rodriguez v. Rosenblatt, 58 N.J. 281 Although the burden is on the Defendant to secure the Court documents or a transcript of the proceeding, those records are not always retained by the Municipal Court or they have been destroyed in an accident. Thus, with older cases these proofs are often not available.

Indigent defendants must also provide records of their financial circumstances. If the records are not available, the Defendant may submit an affidavit or certification stating that they were indigent and did not know of their right to appointed counsel if they could not afford an attorney. The Supreme Court indicated that financial documents, such as bank statements should be attached to the certification if they are still available.

Most importantly, in the Patel decision, the Court decided to remove the five-year limitation on Post-Conviction Relief motions from a Laurick petitions because filing them prior to the second or subsequent DWI offense would be a waste of judicial resources. They also made clear that establishing that the Defendant would have had a different outcome with an attorney on the prior DWI, is no longer a requirement.

If you are facing a Third Offense DWI and had a prior uncounseled guilty plea, please do not hesitate to call and speak to one of our attorneys at (732) 741-4448.