Out of State DWI Convictions May Count Towards Priors When Charged with Violating N.J.S.A.2C:10-26 (Fourth Degree Operating a Motor Vehicle During a DWI Suspension)
Just recently, in State v. Luzhak, the New Jersey Appellate Division construed N.J.S.A. 2C:40-26, fourth degree operating a motor vehicle during a license suspension stemming from DWI, to apply to DWI convictions from anywhere in the United States. In that case, the defendant, who had two prior DWI convictions, one from 2013 in Maryland and the other from 2010 in New Jersey, was issued a motor vehicle summons in Woodbridge for driving with a suspended license in violation of N.J.S.A. 39:3-40.
The defendant was subsequently indicated for fourth-degree operating a motor vehicle during a second license suspension stemming from a DWI, in violation of N.J.S.A. 2C:40-26(b). The defendant thereafter filed a motion to dismiss the indictment, arguing that the 2013 DWI conviction in Maryland did not qualify as a predicate DWI conviction pursuant to N.J.S.A. 2C:40-26(b). The defendant’s argument was essentially that, since N.J.S.A. 2C:40-26(b) did not specifically reference license suspensions due to out-of-state DWI convictions, the statute should be interpreted to specifically require previous license suspensions pursuant to N.J.S.A. 39:4-50, New Jersey’s DWI statute.
The Appellate Division first reviewed the legislative history regarding N.J.S.A. 2C:40-26 and noted that the Senate intended to impose
“criminal penalties for persons whose [drivers’] licenses are suspended for certain drunk driving offenses and who, while under suspension for those offenses, unlawfully operate a motor vehicle.”
The court also noted that the law was prompted by reports of fatal or serious accidents caused by those with multiple DWI convictions, who continued to drive with suspended licenses. In addition, the court further noted that prior decisions have held that out-of-state convictions for an offense equivalent to a DWI were to be considered as a prior offense for enhanced sentencing purposes on a subsequent DWI conviction.
Using this analysis, in addition to New Jersey’s strong public policy against drunk driving, the court held that N.J.S.A.2C:40-26(b) contemplated convictions for DWI or its equivalent in foreign jurisdictions — even those jurisdictions which are not a party state in the Interstate Driver License Compact. In short, what this means is that DWI convictions from anywhere in the United States can expose you to the criminal penalties as set forth in N.J.S.A.2C:40-26, a fourth-degree crime. Those penalties include a mandatory 180 day county jail sentence in addition to up to two years of license suspension on top of the already existing suspension.
Despite the Appellate Division’s decision, other defenses may remain. For example, if we are able to establish that your out-of-state DWI conviction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%, then that conviction may not count against you as a prior DWI conviction. If you have been charged with violating N.J.S.A. 2C:40-26, contact the DWI attorneys at the Law Office of Randolph H. Wolf today. We will review your case for possible defenses to this charge. Call us today at (732) 741-4448 for a free consultation.
On September 19, 2016, it was released that State Police Sgt. Marc Dennis, a former coordinator in the State Police’s Alcohol Drug Testing Unit (“ADTU”), has been suspended pending an investigation into his calibration of Alcotest instruments. Sgt. Dennis was responsible for the calibration of Alcotest 7110 MKIII-C units in Middlesex, Monmouth, Ocean, Somerset, and Union Counties.
Specifically, the State is alleging that Sgt. Dennis failed to use the proper thermometer to test the simulator solutions prior to starting the calibration of the Alcotest 7110 MKIII-C units. This step is necessary under the Supreme Court’s decision in which set forth the necessary steps the State Police must undertake to properly calibrate the Alcotest instrument. Read more
Just recently, the Law Office of Randolph H. Wolf represented a client that was being charged with their fourth cell phone violation in New Jersey. As a fourth offense, pursuant to New Jersey’s hands free driving law, N.J.S.A. 39:4-97.3, the client faced a fine of between $600.00 and $800.00 dollars, the assessment of 3 motor vehicle points, and up to 90 days of driver’s license suspension. Read more
Expungement of Conviction for Third-Degree Possession of C.D.S. with Intent to Distribute Granted in Mercer County
The New Jersey expungement lawyers at the Law Office of Randolph H. Wolf just recently represented another client in Mercer County on another successful “public interest” expungement of his conviction for third degree possession of CDS with intent to distribute. In the past, convictions for possession of CDS with intent to distribute were ineligible for expungement. In 2010, however, the law changed. If the conviction was of the third or fourth degree, the record eligible for expungement so long as you prove that expungement is consistent with the “public interest.”
The client we recently represented was arrested in 1989 and charged with possession of CDS (heroin) in violation of N.J.S.A. 2C:35-10(a)(1), possession of C.D.S. (heroin) with intent to distribute in violation of N.J.S.A. 2C:35-5A(1), and distribution of C.D.S. (heroin) in violation of N.J.S.A. 2C:5b(3). The client subsequently appeared in the Mercer County Superior Court, where he was found guilty of third-degree possession of CDS in violation of N.J.S.A. 2C:35-10(a)(1), third-degree possession of C.D.S. with intent to distribute in violation of N.J.S.A. 2C:35-5A(1), and third-degree distribution of C.D.S. in violation of N.J.S.A. 2C:5b(3).
Pursuant to the 2010 amendments to the expungement statute, N.J.S.A. 2C:52-2(c)(3);
c.In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with the intent to sell, expungement shall be denied except where the crimes relate to involve:…
(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.
Thus, pursuant to this statute, the New Jersey expungement attorneys at the Law Office of Randolph H. Wolf argued that the client’s expungement was in the “public interest.” In doing so, we first pointed out that it had been 21 years since the client had completed his sentence. Courts may take into account the number of offense-free years since conviction because;
“As the number of offense-free years after conviction increase, the risk of re-offending drops.” Ibid. (citing to Megan C. Kurlycheck, et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending? 5 Criminology & Public Policy 3, 489 (2006).
Thus, “this fact would generally tend to support petitions made closer to the ten-year mark than the five-year mark.” Ibid.
We next pointed out that the nature of the offense also weighed in favor of expungement. With respect to this factor, we noted that there was no indication that weapons or violence was involved in the commission of the offense. Nor was there any evidence that the client had distributed drugs to children or in the past.
We further pointed out that, since the client’s arrest, he has changed immensely. Since his conviction he has lead an exemplary life and has had no other arrests. He subsequently enrolled in college, where he received two Associates degrees. He also completed a job training program, where he received his Licensed Practical Nurse Certificate.
We also pointed out that the client continues to maintain family and community ties that promote law-abiding behavior. We highlighted the volunteer work that the client had performed when he collected donations and food to feed the less fortunate. He also volunteered to collect money for Christmas gifts for children.
Clients often ask whether it is possible to be released early from probation. New Jersey law does give judges the authority to release defendants from probation early. Pursuant to N.J.S.A. 2C:45-2, the court, on application of a probation officer or of the defendant, or on its own motion may discharge a defendant from probation at any time.
Just recently, the expungement attorneys at the Law Office of Randolph H. Wolf represented a client in successfully obtaining an “early pathway” conviction of her felony conviction for unlawful possession of a weapon in Ocean County, New Jersey. The client was arrested in 2006 at the age of 20 and charged with being in violation of N.J.S.A. 2C:12-3B, terroristic threats; N.J.S.A. 2C:39-5D, unlawful possession of weapon; and N.J.S.A. 2C:39-4D, weapon possession unlawful purpose. She appeared in the Ocean County Superior Court in 2007, where she plead guilty to N.J.S.A. 2C:39-5D (weapon possession unlawful purpose) and was sentenced to a one-year term of probation, which the client completed in November of 2008.