Defending a Driving While Suspended for a DWI Charge – Felony Charges Avoided


A 3 year legal battle drew to a close in Monmouth County Superior Court today (9/13/19). Our client was indicted by a Monmouth County Grand Jury in 2016 and charged with a 3rd offense driving while suspended (with the suspension for a DWI) and a criminal offense of driving while suspended because of a 2nd DWI. The criminal violation of 2C:40-6B carried with it a state prison sentence of up to 18 months with a mandatory 6 month period of parole ineligibility. The client was originally represented by the Public Defender who recommended accepting a plea deal of six months in the county jail with 6 months of parole ineligibility. The client, who had 5 previous felony convictions and 2 previous DWI convictions had taken steps towards turning his life around and had steady employment as a cars salesman which he would lose if he was sentenced to jail. He came to our office looking for help in staying out of prison.

We told the client that we could not promise to keep him out of prison, but, would promise that if he did go it would not be voluntarily as a result of a plea, but, would only be if we fought to the bitter end and lost. He agreed and we started work in October of 2016. We started investigating the two prior DWIs. The first occurred in 2010 and appeared to be a clean conviction with representation by competent counsel. There was nothing we could do to attack it. It became immediately apparent that the second conviction was extremely questionable. We obtained the court records and found that the client was not represented by either a private attorney or a public defender. We then ordered the Court Transcript of his guilty plea and found a complete denial of his right to counsel by the Municipal Court Judge. The client had failed to appear to face his DWI charge and had been arrested on a bench warrant. When brought before the Judge he asked for time to get an attorney. Instead of giving the client time to obtain ounsel, or make application to the Public Defender, the Judge told him that he had to proceed that day because the DWI was now an old case because of his failure to appear. Not given the opportunity to obtain an attorney, the client pled guilty to what was his 2nd DWI charge.

Our firm filed a Motion for Post Conviction Relief in the Municipal Court, arguing under a decision of State v. Laurick, that the client’s right to counsel was violated and because of that the uncounseled guilty plea could not be used as a basis to impose a jail sentence on the pending criminal charge. We sought an Order from the Municipal Court declaring that for use in the Superior Court. The Municipal Judge denied the Motion and we filed an appeal of the denial of the PCR in the Superior Court. While that motion was pending, it came out that a New Jersey State Police Sergeant by the name of Trooper Mark Dennis, had been falsifying calibration records for various Alcotest Machines. When we obtained the calibration for the machine which tested the client, the paperwork showed that Trooper Dennis had calibrated it. We therefore filed another PCR Motion in the Municipal Court to withdraw the guilty plea on the basis of it being fraudulently obtained by the State. This Motion was eventually stayed by Order of the New Jersey Supreme Court. While all of these Motions were pending, we met with the Assistant Monmouth County Prosecutor handling this case. We were able to convince the Prosecutor to amend the criminal charge to an Obstruction of the Administration of Law under 2C:29-1A, a Disorderly Persons Offense and to dismiss the motor vehicle violation of Driving While Suspended for a DWI (which carries a jail sentence and a minimum one year loss of license). On September 13, 2019 we appeared in Superior Court for sentencing and the client received a one year term of probation on the criminal charge and a 10 day jail sentence (with 4 days of jail credit) and a 30 day license suspension on the 3rd offense driving while suspended motor vehicle charge. After a 3 year battle, the client avoided the felony conviction and the 6 months jail sentence with 6 months of parole ineligibility that he was facing. He is taking a weeks vacation from work to serve the sentence.