Sentence and Appeal

Overturning Old DWI Convictions

1. What is a petition for post-conviction relief?

If you are charged with a second or a third DWI offense then you could face a very harsh jail term and driver’s license suspension if you are convicted. You may believe that it is impossible to reverse a DWI conviction. However, you are wrong! Thankfully, there is a legal process called a petition for post-conviction relief (PCR). In this legal procedure you can file an application with the court and request that your prior DWI conviction be reversed. The application is filed in the Municipal Court wherein you were convicted. When the PCR application is filed, you are requesting the court to reopen up your DWI conviction. In certain circumstances the previous DWI conviction will be vacated, or a court order could enter an order that prevents any new Municipal Court judge from using the old DWI conviction for any sentencing purposes. A PCR can be critical if you have prior DWI convictions. For instance, if you are charged with a third DWI offense, and if you facing enhanced penalties such as a ten-year loss of license, and a 180-jail term, then a PCR may invaluable to reduce your sentencing exposure.

Few applications that can be made in the Municipal Court have as much utility as an application for post-conviction relief. Many times a PCR application is the only possible way to save a defendant from a six-month jail term or a ten-year driver’s license suspension. Generally, PCR applications are useful when a defendant has been charged with a second or a third offense DWI. A successful PCR application may permit the Municipal Court to ignore one of the defendant’s prior DWI offense. In such a case, a third offender may be sentenced as second offender, and a second offender will be entitled to be sentenced as a first offender.

2. I want to try to overturn one of my prior DWI convictions. Where can I file this petition for post-conviction relief?

Petitions for post-convictions are commonly filed in the Municipal Court. In the seminal case of State v. Laurick, 120 N.J. 1 (1990), the New Jersey Supreme Court officially authorized post-conviction relief applications in a Municipal Court. The issue before the court in that case was whether a prior DWI conviction which the defendant was unrepresented by counsel, and had not effectively waived this important right, could be used to enhance the sentence for a subsequent violation. In Laurick, the Supreme Court officially authorized the use of post-conviction relief to attack such a prior DWI conviction in the court wherein the original conviction occurred. In 1998, the Supreme Court adopted Rule 7:10-2, thereby providing the Municipal Courts a firm set of procedures to be used in the filing of post-conviction relief applications.

3. What are the time limitations to file a petition for post-conviction relief in a Municipal Court?

There are time limitations to file a petition for post-conviction relief. Generally a PCR must be filed within five years after the DWI conviction is filed. The Municipal Courts are legally required to retain the tape-recorded DWI proceedings for a period of five years. The five-year time limitation on a PCR application(s) can be relaxed under two circumstances. First, if the application is based upon the imposition of an illegal sentence, there is no limitation. Second, if the defendant can demonstrate facts that tend to show that the delay after the five-year limit was due to the defendant’s excusable neglect, then the court may lawfully entertain the application. In a DWI case excusable neglect on the part of the defendant can often be supported by proof that the defendant was not represented at trial, and was unaware of both the denial of his constitutional rights at trial, and/or aware of his legal right to file a petition for post-conviction relief.

It is important to note that the legal burden of establishing excusable neglect is on the defendant, and must be established by a preponderance of the evidence. Absent compelling, extenuating circumstances, this burden will increase based upon the extent of the delay following the five-year limitation. A defendant should always argue that the five-year time bar should be relaxed. Any court rule can be relaxed in the interests of justice. See, Rule 1:1-2. In any PCR a defendant seeking such relief must establish his entitlement to relief by a preponderance of the credible evidence.

4. What are the grounds for relief in a PCR?

There are four major grounds for post-conviction relief and they are as follows;

a. A substantial denial in the conviction proceedings of the defendant’s rights under the Constitution of the United States or the Constitution or laws of New Jersey.

b. A lack of jurisdiction of the court to impose the judgment rendered on the defendant’s conviction.

c. The imposition of a sentence in excess of or otherwise not in accordance with the sentence authorized by law.

d. Any other grounds previously available as a basis for collateral attack on a conviction by habeas corpus or any other common law or statutory remedy.

5. What are the specific grounds for PCR relief to try to reverse or reopen an old DWI conviction?

In any collateral attack on an old DWI conviction, there are four principle areas that can be used to overturn a prior DWI conviction. The most common ground to attack a prior DWI conviction is that the defendant entered a guilty plea without giving a sufficient factual basis. According to Rule 7:6-2(a)(a) a defendant must give a sufficient factual basis for any DWI case. In simple terms this means that the defendant must admit that he drove drunk. A second common ground for a PCR is that the defendant’s prior DWI conviction was entered on a pro se basis without an effective waiver of counsel. The third major ground is that the defendant received ineffective assistance of counsel. Finally, another major ground for PCR relief is that additional evidence may have be discovered after trial that was illegally withheld from the defense by the prosecution. When this occurs, the defendant may have an excellent chance to win his PCR.

6. What is the most important part of any DWI post-conviction case?

The most important part of any PCR application is that you must obtain a copy of the transcript(s) of the DWI case. If you don’t have a transcript of the case, then this will severely jeopardize your changes of winning your PCR application. The Rules of Court require a Municipal Court to retain the tapes for five years. However, some Municipal Courts maintain their tapes indefinitely. It is not unusual to find a court that tape recordings going back seven years or long. More often than not, a tape of the underlying Municipal court case still exists.

7. Can a petition for  post-conviction relief be filed to correct an illegal sentence?

Absolutely yes. Rule 7:10(b)(1) recognized that a petition to correct an illegal sentence may be filed at any time. One of the major changes in the DWI sentencing law is that a refusal can’t be used to enhance a DWI sentence, and a refusal conviction can’t count as a prior. This rule was established in the case of State v. Ciancaglini, 204 N.J. 597 (2011).

There are tens of thousands of cases wherein a DWI defendant has received an enhanced sentenced because Municipal Court counted a refusal as a prior conviction. This type of scenario would be an excellent opportunity to file a motion to correct an illegal sentence, or a petition for post- conviction relief to correct this sentence.

8. What is the strongest ground to base a petition for post-conviction relief on?

By far the strongest ground to pursue a post-conviction application is that the defendant did not give a sufficient factual basis for the DWI case. A review of the transcript of the underlying DWI case may prove that the court accepted the defendant’s guilty plea without having the defendant admit to actually drinking and driving. Amazingly, it is very common in a Municipal Court, even in serious cases to not take a full and complete factual basis. It is not unusual for judges to refrain from addressing guilty defendants or even getting them to acknowledge their guilt. The court must determine by inquiry of the defendant and others that the plea is being made voluntarily, with a fully understanding of the nature of the charge and the consequences of the plea. Moreover, the court must be satisfied that the exists factual basis for the guilty plea. That is to say the defendant must admit to the violation of the law and all of its elements.

That is to say that a defendant must admit to the violation of the law and all of its elements. As per the Supreme Court reminded us in State v. Barboza, 115 N.J. 415 (1989), a defendant who pleads guilty waives important constitutional rights. Thus the Rules of Court have been designed to assure that a guilty plea be entered voluntary, with a full understanding of the nature of the charges and the penal consequences of the sentence to be imposed. The recitation of a factual basis for the plea allows the court to ascertain whether the defendant is actually guilty of the offense charged. In fact, a plea of guilty that is entered under the circumstances that are not voluntary and knowing violates the due process clause of the 14th Amendment. For these reasons, New Jersey law permits a defendant who has entered a plea of guilty without a sufficient factual basis to support it to vacate the plea through a post-conviction relief application. In summary, a PCR application based upon a lack of a factual basis can often be successful, depending upon the availability and content of the transcript of the underlying proceedings.

9. What is a Laurick issue and how can it help me avoid going to jail in 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 unconcealed 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 defendant was unrepresented by counsel. Another popular ground is that the defendant did not give an adequate factual basis. In the past, the Municipal Court judges 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 transcript 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 a prior DWI conviction. 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 Court judges 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 different, and each Municipal Court is different. Some Municipal Courts will deny these PCR/Laurick cases without adequately reviewing the application. Meanwhile, some Municipal Courts are more progressive and the judge(s) 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.

10. What is the most difficult road block to winning a petition for post-conviction relief?

One of the major obstacles is that there is a five-year limitation for a PCR. However, the five-year bar can be relaxed in certain cases. New Jersey Court Rule 3:22-12 provides that:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after the rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to the defendant’s excusable neglect.

The calculation of the five-year time limit begins when the judgment of conviction is entered. State v. Riley, 216 N.J. Super. 383, 389 (App. Div. 1987), certif. den., 93 N.J. 273 (1983). A defendant’s claim for post-conviction relief filed beyond the five-year time period will be time-barred if it does “not claim excusable neglect or allege facts excusing defendant’s delay.” State v. Mitchell, 126 N.J. 65, 577 (1992).

Many Municipal Court judges don’t want to be bothered by reading lengthy PCR applications. Even if you have written a masterpiece PCR, and if your legal rights were trampled on, the key issue is who is the judge reviewing your PCR. Thus, some judges will routinely deny a PCR if it out of time and filed outside of the five-year time bar. This is the harsh reality of DWI practice in New Jersey.

11. Can the five-year time bar be relaxed in a DWI post-conviction relief case?

It is important to emphasize that the New Jersey Rules of Court provide that R. 3:22-12 “may be relaxed or dispensed with by the court in which the action is pending if adherence to the [the rule] would result in an injustice.” R. 1:1-2. To relax the five-year limitation, the defendant must “establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.” Id. at 579. (quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law. Div. 1990). To sustain this burden, specific facts must be alleged and articulated which, if believed, would provide the court with an adequate basis on which to rest its decision. Id.

Moreover, a defendant must establish excusable neglect to get past the five-year time bar. A defendant must allege sufficient facts for excusing his delay. Any defendant who is seeking an extension of the five-year time bar must cite R. 1:1-2. Rule 1:1-2 justifies relaxing the five-year time bar in the interests of justice. This rule provides in pertinent part;

The rules of the courts shall be construed to secure a just determination,  simplicity in procedure, fairness in administration and the elimination of  unjustifiable expense and delay. Unless otherwise state, any rule any be relaxed or dispensed with by the court  *********  if adherence would result in an injustice.

See, Viviano v. CBS, 101 N.J. 538, 550-51, 503 (1986); (“The Rules of Practice are not an end unto themselves, but a means of service the ends of justice.”) Cimiluca v. Cimiluca, 245 N.J. Super. 149, 152 (App. Div. 1990); (“Rules of procedure do not exist of their own sake, but as means to an end.”)

An illustrative case is State v. Hale, 116 N.J. Supper. 106 (Law Div. 1971). Here, the court held that the five-year time bar in a PCR must be waived, if the defendant has constitutional claims. In the Hale case, the court held that the trial court’s failure to give the defendant a sanity hearing, where the record indicated that the defendant might well have been insane when he committed his crime, raised an issue of  “fundamental injustice” that justified relaxing the five-year bar. The court further held that the petitioner’s liberty interest was violated that justice waiving the five-year bar. See also, State v. Clark, 65 N.J. 426, 437-38 (1974).

Another illustrative case is State v. Miller, 1267 N.J. 565, 576 (1992). In the Miller holding, the court held that a petition for post-conviction relief filed more than five years from the date of judgment of conviction, may be reviewed if petitioner alleges facts which demonstrate that the delay was due to the defendant’s e excusable neglect.