In September of 2019, I wrote how we had successfully kept a client out of prison who was charged with the 4th degree criminal offense of Driving While Suspended because of a multiple offense DWI under 2C:40-26B.  This charge carries with it a New Jersey State Prison sentence of up to 18 months with a mandatory 6 month period of parole ineligibility.  We did this by filing Motions for Post-Conviction Relief on his second DWI conviction.  Once we had overturned this conviction, we argued in the Superior Court that it could not be used for the purpose of being an underlying conviction for the Criminal Offense. The State cited to case law indicating that it did not matter if the conviction was overturned and we cited to the Laurick decision that applied to Driving While Suspended motor vehicle charges.  Eventually we convinced the Prosecutor that our argument had some merit and they pled the charge down to a Disorderly Persons Offense with no jail time.  Its taken three years, but, in another case where the attorney could not get the charge dismissed, the defendant was convicted and the Appellate Division has reversed the conviction on exactly the same grounds we argued 3 year ago.

In State v. Michael A. Konecny (A-21-20), Argued September 13, 2021 — Decided April 5, 2022, Justice PIERRE-LOUIS, writing for a unanimous Court stated that In State v. Laurick, the Court held that prior uncounseled convictions for driving while intoxicated (DWI) cannot be used to enhance a custodial sentence for a second or subsequent DWI offense. 120 N.J. 1 (1990). It then considered whether Laurick relief also prohibits prior uncounseled DWI convictions from serving as the underlying offenses to impose a custodial sentence for a later driving while suspended conviction under N.J.S.A. 2C:40-26(b).  In this case, the Defendant was convicted of DWI in 1986, and he pled guilty to another DWI offense in 1999. In 2014, defendant was arrested and charged with offenses including DWI and one count of refusal to take a breathalyzer test.

In 2016, defendant pled guilty to the Refusal charge in Middletown Municipal Court and his license was suspended for two years. During that period of suspension, defendant was arrested 3 times for Driving While Suspended under 2C:40-26(b).  In April 2018, defendant pled guilty to all three of these charges in Superior Court. The State, in turn, agreed to recommend that defendant be sentenced to 180 days on each count – the statutory mandatory minimum period and to allow PCR motions to be filed on the underlying convictions.

Defendant then filed motions for post-conviction relief (PCR) regarding his 1999 DWI conviction as well as his 2016 Refusal conviction. Both petitions argued ineffective assistance of counsel as the basis for PCR. In July 2018, defendant appeared before the Middletown Township Municipal Court which entered an order that defendant’s 1999 counsel was constitutionally ineffective and that the conviction should not be used as indicated in Laurick for enhancement of penalties.  Defendant then appeared before the Union Beach Municipal Court on the PCR motion related to his 2016 Refusal conviction and the Court signed a Laurick order. Both municipal court orders specifically stated that under Laurick the convictions were not to be used to enhance any subsequent conviction under either N.J.S.A. 39:3-40 or 2C:40-26(b).  

Back in the Monmouth County Superior Court for sentencing, however, that court ruled that Laurick was limited to sentencing for DWI convictions and could not be extended to 2C:40-26(b) convictions. It sentenced defendant to 180 days imprisonment, and the Appellate Division affirmed. The New Jersey Supreme Court granted certification. 244 N.J. 344 (2020) and held that Laurick relief and the principles underlying the prohibition against the use of uncounseled DWI convictions extend to the enhanced sentencing scheme in Section 26(b), and prior uncounseled convictions cannot be used for the enhanced prison sentences required under the statute.   It further held that if a defendant obtains PCR on a prior DWI or Refusal conviction and the State does not pursue a second prosecution, that vacated conviction cannot be used as a predicate in a Section 26(b) prosecution.  It then ruled that in the case before it, the defendant was not entitled to Laurick  relief in the first case because he had counsel during his prior proceedings. Laurick is available only to defendants who did not have an attorney and were not advised of their right to counsel during their DWI-related prosecution.  

Just as we argued 3 years ago, the Court found no distinction between the two sentencing schemes for the criminal charge as opposed to the motor vehicle charge of Driving While Suspended.  Although the facts of Laurick dealt with DWI convictions, nothing in the opinion limited its right-to-counsel principles to DWI matters. If a defendant obtains Laurick relief on a prior DWI or Refusal conviction, fairness dictates that the conviction upon which relief was granted cannot be used to increase that defendant’s sentence under 2C:40-26(b).  In this case, though defendant was not entitled to Laurick relief on either of his prior conviction based on his ineffective assistance of counsel claims as Laurick only held “that an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant’s loss of liberty.”  Laurick created a special form of PCR that does not vacate the conviction, as in traditional PCR, but simply prevents the use of an uncounseled  DWI conviction to enhance a subsequent sentence. As defendant did have counsel for his prior DWIs, municipal courts erred in granting defendant Laurick relief and the Court affirmed defendant’s sentence. 

In an interesting practice pointer to attorneys, the Court advised that the petition defendant originally filed for PCR alleging ineffective assistance of counsel was the appropriate motion here, not the Laurick motion.  However, the traditional PCR motion requires defendant to adhere to the general principles of post-conviction relief and has a five-year time-bar in the absence of excusable neglect. However, if these conditions were met and a traditional PCR were granted, the Court stated that  if the State does not initiate a second prosecution or the matter is otherwise dismissed, the vacated conviction cannot then serve as a basis for charging a defendant with another offense. In other words,  a conviction vacated through PCR cannot be used as a predicate for a conviction under 2C:40-26(b).  The Court also stated that Rule 7:10-2(g), which covers PCR in municipal courts, is specifically reserved for relief pursuant to Laurick for prior uncounseled convictions, not traditional PCR which is subject to the five-year time limitation of Rule 7:10-2(b).

If you are facing a criminal prosecution for Driving While Suspended for a DWI, the attorneys at Wolf Law are here to help you.  Please give us a call at 732-741-4448 and get a free consultation.