Driving in New Jersey with a Suspended License as a Result of an Out-Of-State DWI Conviction

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

State v. Luzhak. New Jersey Appellate Division approved for publication April 28, 2016.

Issue out of state DWI considered for purposes of New Jersey driving while suspended due to DUI conviction case law.

This is a case update addressing the recent case law regarding being charged with driving while suspended as a result of a DWI conviction.

The New Jersey Appellate Division has closed one more door on the defense’s ability to avoid mandatory incarceration for driving while suspended as a result of a prior DWI conviction under the most recent statutory amendment to New Jersey driving while suspended statute.

The issue in this case is whether an out-of-state DWI conviction shall be considered in New Jersey for the purposes of the most recent New Jersey legislative effort to stop suspended drunk drivers from driving.

NJSA2C: 40–20 6B defines a 4th offense of driving during a license suspension resulting from a DUI.   This statue also requires a mandatory jail term with no parole eligibility based on other recent case law we have discussed.

In this case the defendant was charged in New Jersey for driving while suspended following a minor car accident in October 2013.   Factually, he had an April 2010 DWI conviction in a New Jersey jurisdiction. This was a first offense. He had a “second offense “conviction for DUI in March of 2013 in Maryland. The question becomes at the time of his accident, October 13, 2013, and NJSA 39:3-40 driving while Suspended charge; was the most recent DWI conviction was from a foreign jurisdiction and that defendant was only suspended in that jurisdiction, not New Jersey’s.  Remember an out of state jurisdiction cannot suspend somebody’s license in New Jersey or any other jurisdiction then it’s on as a matter of law.  Question, Was the defendant suspended in New Jersey at the time of October 2013?

The court described its requirement to look to the legislative intent of the plain language and policy behind the statute together with concepts of reasonableness and legislative history. In this case the court identify the legislative intent and purpose behind getting drunk drivers off of the road.  Further it acknowledged  the statute was intended to punish those drivers who are continuing to drive after their license has been suspended due to a DWI. It recognize the increased significance of repeat offenders with multiple prior DWI violations who represent a substantial  and or statistically significant number of such persons involved in serious accidents. The court then turn to the interstate driver license compact statute and acted in 1966. This require the states which adopted said law as a matter of policy to encourage reciprocal recognition of motor vehicle violations and convictions in other jurisdictions thereby increasing the probability of safety on the highways, to recognize each other’s DWI convictions as well as any and all other motor vehicle violation charges. The court then looked to the use of other states DWI convictions and N.J.S.A. 39: 5D – 2B which requires the New Jersey to give the same effect of convictions in other jurisdictions as if such conduct had occurred at home here in New Jersey.

Thereafter this court recognized the New Jersey legislature amended the DWI statue to recognize DWI convictions in foreign states regardless of their participation in the interstate compact. In 1997 the law was changed to recognize any out-of-state conviction regardless of participation in the interstate compact shall constitute a prior conviction unless the defendant can show by clear and convincing evidence that that that other jurisdiction has a different blood alcohol level standard of guilt. In other words if another state has a blood alcohol concentration of less than New Jersey’s .08, said conviction should not apply. The application of this statutory construction in 1997 was applied as a instance of first impression and this court and the Appellate Division affirmed such application would be consistent with the clear intent of the legislature at this time.

Again, the court goes on to discuss the significance and substantial strong public policy against drunk driving in New Jersey as well as the enhanced sentencing structure of New Jersey driving while suspended statute to any DWI conviction in any other state.  The court’s overriding concern was its own duty to enforce the legislative and policy intent behind New Jersey’s most recent driving while suspended due to a DWI conviction as an policy effort to avoid fatal or series accidents caused by repeat offenders with multiple prior DWI convictions who continue to drive.

The defendant then objected to the use of his New Jersey motor vehicle abstract being admitted as hearsay evidence. The court looked at the New Jersey motor vehicle abstract in the same light it looked at a toxicology report under United States 6th Amendment constitutional confrontation clause. Under the 2004 United States Supreme Court decision of Crawford v. Washington the abstract is “non-testimonial” and the court found the drivers abstract could be properly admitted as a business record pursuant to New Jersey rule of evidence 803(C)(6)  as well.

As a result the defendants most recent out of state DWI conviction was considered relevant applicable to his October 2013 driving while suspended charge. He was found guilty, he was required to serve the mandatory 180 days in the county jail sentence with no eligibility for parole plus the appropriate fines and penalties. As well his New Jersey drivers privileges were suspended for an additional one year of consecutive time to any current DWI. Or driving while suspended period of suspension.

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