Failure of A Judge to Advise You About Increased Penalties for Future DUI’s, Will Not Prevent Those Increased Penalties from Being Applied

State v. Lukens

Appellate Docket No.: A-0458-20

Decided April 13, 2021

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In an unpublished opinion, the Appellate Division of New Jersey reviewed whether the failure to warn defendant of increased penalties, including six months imprisonment for a conviction of a third driving while intoxicated (DUI), during the plea colloquy of defendant’s second DUI.

In State v. Lukens, Defendant was convicted of his first DWI offense in 1995. On June 18, 2012, defendant was charged with his second DWI offense. On August 13, 2012, defendant appeared in municipal court and pled guilty. The municipal court judge conducted a colloquy with defendant that established that the guilty plea was knowing and voluntary and that defendant was satisfied with the services that had been provided by counsel. The judge also elicited the factual basis for defendant’s guilty plea. During the plea colloquy, rather than recite the consequences of a future DWI offense,2 the judge instead essentially incorporated by reference the advisement that was given to other defendants who had pled guilty to DWI during that court session.

The judge thereupon accepted defendant’s guilty plea. Because the defendant’s second offense occurred more than ten years after his 1995 offense, he was treated as a first offender for sentencing purposes. Defendant did not appeal the August 13, 2012 guilty plea conviction or sentence.

On April 9, 2018, defendant was again arrested and charged with his third DWI offense. On August 6, 2018, defendant filed a motion before the municipal court to vacate his 2012 guilty plea. He argued his 2012 plea was not knowingly made because the court failed to apprise him of the potential consequences of a third DWI conviction. He also argued the plea rested on an insufficient factual basis. On August 20, 2018, a municipal court judge denied the motion.

Defendant appealed to the Superior Court, Law Division. On April 16, 2019, a Law Division judge conducted a de novo review on the record and denied defendant’s motion, rendering a twenty-nine-page written statement of reasons. On May 2, 2019, defendant filed a motion for reconsideration. Because the Law Division judge who rendered the initial decision was on an extended leave of absence, the matter was reassigned to another Law Division judge. The reconsideration motion judge agreed with the municipal court judge and original Law Division judge there was an adequate factual basis for the 2012 guilty plea. However, the reconsideration motion judge determined that defendant had not been properly advised of the penal consequences of his 2012 guilty plea because the municipal court failed to apprise him of the consequences of a future DWI conviction. On that basis, the reconsideration motion judge concluded that defendant suffered a manifest injustice that required the 2012 guilty plea to be vacated.

The State appealed. The Appellate Division reversed to reinstate the conviction, finding that the failure to orally provide defendant with the increase penalties of a third DUI was not grounds to avoid those increased penalties upon a conviction of a third DUI. If the Court were to allow this, it would be a landslide for defendants to escape prior DUI’s and avoid increased penalties, even if those DUIs had an adequate basis.

This case is important to understand that a simple failure of a municipal court judge to advise you about increased penalties for future DUI’s, although required by statute, will still not prevent those increased penalties from being applied upon subsequent DUI convictions. It is vital to contact us at Hark & Hark if you or someone you know is charged with DUI or similar offenses, so they are dealt with properly, prior to a conviction. Failure to do so may have drastic consequences for your future.

At Hark & Hark, we represent clients in municipal court for DUI DWI refusal careless and reckless driving. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Aberdeen, Allenhurst, Allentown, Asbury Park, Atlantic Highlands, Avon-by-the-Sea, Belmar, Bradley Beach, Brielle, Colts Neck, Deal, Eatontown, Englishtown, Fair Haven, Farmingdale, Freehold borough, Freehold township, Hazlet, Highlands, Holmdel, Howell, Interlaken, Keansburg, Keyport, Little Silver, Loch Arbour, Long Branch, Manalapan, Manasquan, Marlboro, Matawan, Middletown, Millstone, Monmouth Beach, Neptune, Neptune City, Ocean, Oceanport, Red Bank, Roosevelt, Rumson, Sea Bright, Sea Girt, Shrewsbury borough, Shrewsbury township, South Belmar, Spring Lake Boro, Spring Lake Heights, Tinton Falls, Union Beach, Upper Freehold, Wall, and West Long Branch.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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