Out of State DWI Convictions May Count Towards Priors

October 4, 2016

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.

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