I have an out-of-state DWI conviction, will it affect an in-state charge for DWI and possible conviction and extended license suspension?

Held  v.  New Jersey motor vehicle commission. New Jersey Superior Court appellate division decided October 24, 2018.

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

I have a out-of-state DWI conviction and received a letter from the New Jersey MVC suspending my license as if I have a second or third prior conviction in state. Are they allowed to do this?

In New Jersey we have a statutory scheme where there is a ten-year suspension for a third offense DWI conviction, a second offense conviction results in a two year license suspension, and a first offense DWI conviction will result in anywhere between a three month and seven months suspension. This case outlines the effect of a prior conviction from another jurisdiction and how it would come into play at that time of sentencing in this state.

New Jersey participates in the Interstate Drivers License Compact. As such New Jersey will absolutely take into consideration a prior conviction which took place in another state so long as the statute is “Substantially similar“ to a conviction under the New Jersey DWI statute, 39:4- 50 (A).

The issue in this case was the defendant’s prior driving while impaired conviction under the Maryland motor vehicle code which took place after to the defendant’s guilty plea in New Jersey. This defendant had prior DWI Convictions in 1991, 1994, 2013 all in New Jersey and then a subsequent Maryland conviction in  2017. He was given a step down to a second offense and 2013 in New Jersey and nearly a two-year loss of license. However, New Jersey MVC sent him a 10 year license suspension notice as a result of the Maryland conviction in 2017.

This defendant appealed the administrative actions of the MVC and the Appellate Division granted the appeal and ordered the MVC  to allow this defendant to supplement the record with regards to his Maryland conviction, guilty plea, or any other factual record concerning the Maryland out of state charge. The Appellate Division had a question and could not answer the factual and legal issues regarding the “substantially similar“ out of state  conviction from Maryland.

As a result they remanded the case to the motor vehicle commission, allowing the defendant to supplement the record until late December 2018. The court found because of the defendant was arguing substantial legal questions the Appellate Division could review the case from the beginning, as opposed to defer to the agency’s  administrative function and abuse of discretion standards. The appellate court recognized similar statutory construction and interpretation has also applied to New York and Utah and investigation of Marilyn’s statue had to take place and could not be done in the appellate court because the record was not complete.

What does this mean for you? If you have an out-of-state DWI conviction and examination of the other states’ statutory language must be undertaken to determine if that states’ DWI statute is substantially similar and/or identical to New Jersey. New Jersey DWI statue, 39:4-50 authorizes two different basis  for  conviction by the court. The first is a per se violation when the state proves  the blood alcohol concentration is greater than .08 by the use of the alco-test machine. The second is based on officers’ observations of whether the defendant operated the vehicle “under the influence of intoxicated with her “. This does not involve any chemical testing, however it does involve the office testifying that the drivers ability was impaired and there was the presence of alcohol by way of officer observation and training.  The office’s observation threshold test has been affirmed in the Appellate Division previously. See State v.  Kent, 391 N.J. Super. 352 ( App. Div. 2007).

A serious and frank discussion must take place between you and your attorney outlining the prior conviction from the other state so a legal investigation can take place and representations made with regards to the means of conviction, the proofs presented at trial, and the record established in the other court.  Determination must be made it the other states’ conviction can be used against you in New Jersey in the municipal court trial at sentencing, or subsequently by the New Jersey MVC as took place here.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office