Prior Uncounseled Convictions for Driving While Intoxicated (DWI) Cannot Be Used to Enhance a Sentencing Scheme for Subsequent DWI Convictions

State v. Michael Konecny

Appellate Docket No.: A-21-20

Decided April 5, 2022

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In a recent decision, the Supreme Court of New Jersey held that a prior uncounseled conviction for driving while intoxicated (DWI) cannot be used to enhance a sentencing scheme for subsequent DWI convictions.

In Konecny, after two DWI convictions and a conviction for refusal to submit to a breathalyzer test (Refusal) in violation of N.J.S.A. 39:4-50.4(a), defendant Michael Konecny’s license was suspended. During that period of license suspension, defendant was pulled over while driving and charged with DWS.

Defendant pled guilty to DWS, but, before he was sentenced, two different municipal courts granted him Laurick[1] relief on his most recent DWI conviction and on his Refusal conviction, respectively, based on his claim of ineffective assistance of counsel. The orders specifically noted that the prior convictions could not be used to increase a term of imprisonment for asubsequent DWI or a conviction under Section 26(b) pursuant to this Court’s holding in Laurick.

Notwithstanding the Laurick relief orders that defendant obtained in municipal court, the trial court sentenced defendant to 180 days’ imprisonment for his DWS conviction and held that Laurick relief was limited to sentencing for DWI convictions and did not extend to Section 26(b). On appeal, the Appellate Division affirmed defendant’s sentence and agreed with the trial court that Laurick relief is unavailable in a Section 26(b) setting.

The Supreme Court of New Jersey now holds that Laurick relief, and the principles underlying the prohibition against the use of uncounseled DWI convictions, extend to the enhanced sentencing scheme in Section 26(b), and that prior uncounseled convictions cannot be used as predicates to increase a loss of liberty for DWS. Furthermore, if a defendant obtains traditional PCR on a prior DWI or Refusal conviction and the State does not pursue a second prosecution, that vacated conviction cannot be used as a predicate in a Section 26(b) prosecution.

This case is important to understand under normal circumstances, subsequent DWI convictions carry escalating penalties. However, prior convictions in which the defendant was not represented by counsel and informed of the consequences of a plea to DWI and subsequent convictions cannot be used against the defendant for subsequent convictions or to enhance sentences. Furthermore, a DWI dismissed through post conviction relief (PCR) is treated the same and cannot be used against the defendant in the future as a first offense.

If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

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 county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.


[1] In State v. Laurick, this Court held that prior uncounseled convictions for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50 cannot be used to enhance a custodial sentence for a second or subsequent DWI offense. 120 N.J. 1 (1990).

Posted in

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment