Sentencing Issues in NJ DWI Cases

A very important aspect in sentencing for DWI convictions is whether you are categorized as a first, second, or third offender. This categorization can significantly effect the penalties involved. One of the strategies for avoiding categorization as a second or third offender is to argue that your prior convictions were “uncounseled”, meaning that the defendant was not represented by counsel in his prior DWI cases. This issue was discussed in the New Jersey Supreme Court case of State v. Hrycak, 184 N.J. 351 (2005). ” A defendant is faced with a three-step undertaking in proving that a prior uncounseled DWI conviction should not serve to enhance the jail component of a sentence imposed on a subsequent DWI conviction. As a threshold matter, the defendant has the burden of proving in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case. He or she must then meet the two tiered test in Laurick (citation omitted). In that vein, if the defendant proves that notice of the right to counsel was not provided, the inquiry is then bifurcated into whether the defendant was indigent or not indigent. ‘If the defendant was indigent, the defendant must prove that the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver.’ On the other hand, if the defendant was not indigent at the time of the prior uncounseled conviction, the defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one’s choosing and to prove that the absense of such counsel had an impact on the guilt or innocence of the accused or otherwise ‘wrought a miscarriage of justice for the individual defendant.’”

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