Can prior DWI convictions be introduced at trial to prove ‘reckless conduct”?
Submitted by New Jersey DWI Lawyer, Jeffrey Hark
Issue: What evidence is too prejudicial to introduce to a jury? Remember all evidence is prejudicial to a defendant! The state will attempt to introduce all of it because that evidence will aid the jury to convict a defendant. The ultimate question will be whether the trial judge allowed the evidence in or will the trial court, when it exercises its discretion, will determine if the evidence is too prejudicial. Here the issue is prior DWI convictions being offered to prove reckless conduct. What is too prejudicial? Evidence that will deprive the defendant his right to a fair trial because that evidence will distract the jury and will cause the jury to rely upon that evidence too much at the expense of the other evidence being introduced, or that evidence will so greatly persuade the jury of guilt.
Here the state wanted to introduce Green’s two prior DWI convictions and subsequent IDRC participation to show that Green was aware of, but consciously disregarded, the risks of driving while intoxicated, a mental state that is a material element of vehicular homicide.
Facts and Procedural History:
On a late December night in 2014, Green struck and killed Billy Ray Dudley (Dudley), who was lying in the road. A toxicology lab determined Green’s blood alcohol concentration (BAC) to be 0.210% at the time of the accident. Pursuant to N.J.S.A. 39:4-50, a person who operates a motor vehicle with a BAC of 0.08% or more is guilty of driving while intoxicated. Green had two prior DWI convictions in 1998 and 2009, for which his sentences each required completion of an educational course at the Intoxicated Driving Resource Center (IDRC). As a result of Dudley’s death, Green was charged with first-degree vehicular homicide while intoxicated and within 1,000 feet of a school.
Before trial, the State moved in limine to introduce Green’s two prior DWI convictions, which the State argued were relevant to the issue of recklessness. According to the State, the prior convictions demonstrated that Green “had knowledge of the substantial and unjustifiable risks associated with driving while intoxicated.”
The trial court denied the State’s motion. Applying the factors established in State v. Cofield, 127 N.J. 328, 338 (1992), the trial judge ruled that the evidence was unduly prejudicial because a jury might use the prior convictions as evidence that Green acted in conformity with that behavior in this instance.
The Appellate Division affirmed the trial court, noting that “[d]riving while intoxicated may alone satisfy the recklessness required by the death by auto statute.” 452 N.J. Super. 323, 325-26 (App. Div. 2017) (quoting State v. Jamerson, 153 N.J. 318, 335 (1998)). Applying the Cofield factors, the panel concluded that the trial judge did not abuse his discretion in excluding Green’s two prior DWI convictions. Id. at 328-29.
Law: This is an evidence question solely and squarely in the trial judge’s discretion:
- Rule 404(b) bars “evidence of other crimes, wrongs, or acts” when used “to show that [a] person acted in conformity therewith.” N.J.R.E. 404(b). However, evidence of prior “crimes, wrongs, or acts” may be used to show “intent, . . . knowledge, . . . or absence of mistake or accident.” Id. Because evidence of a defendant’s other crimes has a unique tendency to prejudice the jury, other-crimes evidence proffered under Rule 404(b) must pass a rigorous test. In Cofield, 127 N.J. at 338, the Court adopted a four-part test to determine the admissibility of other-crimes evidence:
The evidence of other crimes “Cofield” Factors:
“(1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.”
Trial courts must apply that test on a case-by-case basis “in order to avoid the over-use of extrinsic evidence of other crimes or wrongs.” Ibid.
To satisfy the first prong of the Cofield test, the proffered evidence must be relevant to a material issue genuinely in dispute. Here, as a result of his DWI convictions, Green was required to take courses at the IDRC, where he learned of the dangers of driving while intoxicated. As such, the proffered evidence supports the State’s contention that Green knew of and consciously disregarded the risks of driving while intoxicated. Thus, Green’s previous DWI convictions and compulsory IDRC participation were relevant to a material issue at trial, namely Green’s recklessness.
Although relevant in Cofield, similarity and temporality are not applicable in every case. As a result, Cofield’s second prong may be eliminated where it serves no beneficial purpose. That is the case here.
Under the third Cofield prong, the prosecution must establish that the other crime actually happened by clear and convincing evidence. Here, the State offered judgments of conviction. Therefore, the evidence satisfies Cofield’s third prong.
Because of the damaging nature of other crimes evidence, the fourth Cofield prong — “[t]he probative value of the evidence must not be outweighed by its apparent prejudice,” 127 N.J. at 338 — is the most difficult to overcome. That prong requires an inquiry distinct from the familiar balancing required under N.J.R.E. 403: the trial court must determine only whether the probative value of such evidence is outweighed by its potential for undue prejudice, not whether it is substantially outweighed by that potential as in the application of Rule 403. If other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion. Therefore, Rule 404(b) is viewed as a rule of exclusion rather than a rule of inclusion. To reduce the inherent prejudice in the admission of other-crimes evidence, trial courts are required to sanitize the evidence when appropriate, and a carefully crafted limiting instruction must be provided.
The crux of this case is Cofield’s fourth prong. Green’s two prior DWI convictions and subsequent IDRC participation tend to show that Green was aware of, but consciously disregarded, the risks of driving while intoxicated, a mental state that is a material element of vehicular homicide. Nevertheless, other considerations diminish the probative value of the evidence at issue. For example, Green’s prior DWI convictions were from 1998 and 2009 — many years before this fatal accident.
Turning to prejudice, while Green was indeed intoxicated on the night of the accident, Dudley was lying in the middle of a dark roadway when he was struck by Green’s vehicle. Even with the most carefully crafted limiting instruction, admission of Green’s two prior DWI convictions could result in the jury’s conflating recklessness and causation. Additionally, Green had a BAC of 0.210% at the time of the incident. Therefore, the State has at its disposal probative and far less inflammatory evidence of Green’s reckless state of mind. In light of the circumstances present in this case, the risk that a jury would convict Green based on his propensity to drive while intoxicated outweighs the probative value of his more than five-year-old DWI convictions. Therefore, balancing the probative value against the prejudice of admitting defendant’s prior DWI convictions and IDRC program participation under Rule 404(b) favors exclusion of the evidence.
- Here, the trial court and Appellate Division were correct to exclude defendant’s prior DWI convictions. However, as in State v. Bakka, 176 N.J. 533 (2003), the Court recognizes that there may be a situation in which prior DWI convictions of a defendant charged with vehicular homicide while intoxicated would be admissible under Rule 404(b) as evidence of recklessness, despite the statutory inference of recklessness arising from evidence that the defendant drove with a BAC over 0.08%. The probative value of prior DWI convictions close in time to the incident charged may, only in the rare case, outweigh the potential for undue prejudice.
The Court therefore encourages trial judges to perform a thorough Cofield analysis and not presume a per se exclusion of such evidence. The admissibility of Rule 404(b) evidence must be considered on a case-by-case basis by analyzing the evidence proffered and the circumstances of the case.