I was just convicted of DWI/DUI in New Jersey. Can I keep my license if I appeal the conviction.

State v. Scott Robertson

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In this case the defendant was found guilty after a trial of DWI.  The defendant appealed the conviction and asked the municipal court judge to stay of his license suspension pending the appeal.  The municipal court granted the stay for 21 days until the defendant proves he has actually filed the appeal.  When the case came before the Law Division on appeal, the defendant lost the appeal again but asked for a stay of the license suspension again pending that appeal.  The Law Division judge granted that request but required the defendant to file his appeal within 10 days or the suspension would be instituted.

The New Jersey Supreme Court took this case to address this very “stay of license suspension issue pending appeal” as a matter of significant public importance. The court set a new test for the municipal court and the law division appeals court to employ to address a defendant’s request that the license suspension be “stayed pending appeal”.

Now at the municipal court trial level a defendant has a “presumption of eligibility” for the stay of license suspension if s/he communicates intention to appeal.  However, the state can object and if the state presents evidence that the “stay of license suspension” (the defendant driver keeps his license) “would create a serious threat to the safety of any person or the community” the court can still suspend the license pending an appeal.  Once the state presents their safety threat evidence via argument post trial the defendant can object or present argument or evidence of mitigation.  Ultimately, I believe the court will rely upon the evidence introduced at the time of trial when asked to weigh the stay of license suspension pending appeal.  The court will take into consideration the facts introduced at trial about the alco-test BAC, whether the defendant was cooperative as well as the Moran factors when making that determination. The additional factors include a) the driver’s license history, and ticket history, any failures to appear, the facts surrounding this DWI which was the subject of the case before the court, injuries to the defendant or others, the damage to the car, other cars, buildings, or…., any other facts the court deems necessary to consider.

Once the case gets past the Law Division and to the appellate court, via an appeal is taken if the conviction is affirmed, then the defendant has the burden to prove the three elements outlined in Rule 2:9-4 which are

  1. whether the case represents a substantial question that should be addressed on appeal,
  2. the safety of the community is not at risk, and
  3. there is no significant risk of flight of the defendant.

Also, the Law Division can impose restrictions on the defendant and his/her license to protect the public.

So, in conclusion, there is now a clear procedure the trial court (municipal court) must follow when a defendant asks to have his license suspension stayed pending appeal.  The defendant is given the presumption of entitlement to that stay.  However, the municipal prosecutor can present and the Court must review any and all facts when considering the request.  The court can deny a defendant’s request but must put on the record the basis for that denial.  Remember, the facts of your DWI conviction will be considered by the court as well as your prior driver’s abstract history.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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