Sentence and Appeal

“Laurick” Sentencing Considerations for Third Offense DWI

What is a Laurick issue and how can it help me avoid going to jail for my upcoming DWI case?

A critical issue in any multiple DWI case is whether a defendant has a prior DWI conviction(s) wherein he has entered an uncounseled guilty plea. In many DWI cases, a defendant enters a guilty plea to a DWI charge without first obtaining a lawyer. Many defendants just want to get the case over with. It is very hard to beat a DWI case, and many defendants simply want to put this bad experience behind them and to move on. However, a defendant’s past DWI conviction(s) can certainly haunt him for the rest of his life. A critical issue is if a defendant proceeds without legal counsel, in the absence of an affirmative waiver, can the DWI conviction be used at later DWI case to enhance his penalties/sentence? This question is commonly referred to as a Laurick issue.

In the landmark case called State v. Laurick, 120 N.J. 1 (1990), the New Jersey Supreme Court held that it constitutionally permissible for a prior uncounseled DWI conviction to be considered for purposes of the enhanced penalty provisions of the DWI laws of the State of New Jersey. The only constitutional limit is that a defendant may not suffer an increased period of incarceration imposed may not exceed that for any uncounseled DWI convictions. Thus, in New Jersey an uncounseled DWI conviction without an express waiver of the right to counsel can’t be used to enhance a subsequent DWI conviction.

There may be a Laurick issue which involves whether or not you were represented by legal counsel for your prior DWI offenses, and whether or not there was a proper factual basis taken at the time of your prior offenses. Laurick issues are normally are raised in a third time DWI case. The penalties for a third time DWI are a ten-year license suspension, and a 180-day jail term. If a DWI defendant has been a law-abiding person, then the prospect of being sentenced to a 180-jail term can be very terrifying. Thus, you must “go to war” and do everything possible to avoid a lengthy jail term.

A very common defense strategy is to try to collaterally attack the first two DWI convictions. There are many ways to legally attack a prior DWI conviction. Was the prior DWI conviction the result of an uncounseled plea? Did the defendant give an adequate factual basis for the guilty plea? A defendant will have to file a petition of or post-conviction relief or a PCR in the Municipal Court wherein the prior DWI conviction was obtained. You will have to file a petition and a brief in the original Municipal Court wherein the defendant obtained the DWI conviction. In a serious DWI case most Municipal Courts will give an attorney a reasonable amount of time to file a petition for post-conviction relief to try to attack or reopen the defendant’s prior DWI case(s). In these types of cases, the defendant is often desperate, and he will try anything and everything to try to stay out of jail. Your lawyer will have to file a very comprehensive PCR application and try to reverse or reopen up your prior DWI conviction(s) because you did not have a lawyer to give you legal advice. This type of petition for post conviction relief is also referred to as a Laurick application.

The most popular ground to reopen up a prior DWI case is that the DWI defendant was unrepresented by counsel. Another popular ground is that the DWI defendant did not give an adequate factual basis. In the past, the Municipal Courts were not as thorough as they are now. Back in the day, most Municipal Court judges would simply rush the case, and not obtain a decent factual basis. Basically, a factual basis simply means that the defendant must admit that he was driving drunk. It is critical to try to obtain the transcripts for the prior DWI case. Sometimes, a Municipal Court will have the audio tapes for prior DWI cases that go back many years. Alternatively, most local Municipal Courts only retain the tapes of prior DWI cases for five years. In one of my cases, I was able to obtain a transcripts for a 13-year old DWI case. The transcripts did not show that the defendant gave a sufficient factual basis to the DWI charge. Thus, I was able to reopen up the DWI conviction even though it was 13 years old. Consequently, I was able to have this client’s ten year driver’s license suspension reduced to only a two-year suspension.

In summary, you have to pick your battles if you are trying to attack prior DWI convictions. If you are desperate and if you have the adequate financial resources, then you have nothing to lose but a few dollars. Sometimes you may luck out and be able to reopen and even reverse a prior DWI conviction. Thus, for your current DWI case, you can avoid an excessive sentence and even jail time. However, there are no guarantees. There are some Municipal Courts that don’t even want to read petitions for post-conviction relief. Some Municipal Courts make every excuse possible to not hear them. Municipal Courts are volume courts for the most part, and the judges don’t want to get bogged down with reviewing lengthy briefs and transcripts. Meanwhile, some Municipal Courts will read each and every page of a PCR/Laurick application, and the judge will give you a fair day in court. However, each case is difference, and each Municipal Court is different. Some courts will deny these PCR/Laurick cases without adequately reviewing the application. Meanwhile, some Municipal Courts are more progressive and the judge may buy your legal arguments if they make sense, if there are strong and compelling grounds, and if your legal papers are very well prepared.