I was convicted in NY for a DWAI in 2007. I was recently charged with a DWI in New Jersey. What effect will the DWAI have if I am convicted in NJ?

The law on whether an out of state drunk driving adjudication effects a subsequent New Jersey DWI conviction is set forth in the statute at N.J.S.A. 39:4-50(a)(3): “A conviction of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966,c.73(C.39:5D-1 et seq.), shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.”

The practical effect of an out of state DWI conviction(s) is whether the municipal prosecutor has knowledge of this information. For instance, the DWI summons may note that individual charged has a driver’s license from another state. The diligent municipal prosecutor may initiate communication with the DMV of this other state to obtain the individual’s driving record. If this due diligence on the part of the municipal prosecutor reveals a prior out of state DWI conviction, the burden shifts to the Defendant to then demonstrate, if he can, that the prior out of state conviction was predicated upon something other than at least a .08% BAC.

There are many layers to this analysis. The mere fact that a defendant may reveal on a mobile video recorder to a police officer that he has an out of state DWI conviction is not sufficient proof for the State to prove that there is such an out of state conviction. Rather, this could merely serve as the basis for the municipal prosecutor to further investigate whether he can prove the fact of the out of state conviction. Necessarily, this would require cooperation between the out of state DMV and the municipal prosecutor who is requesting such information. That is easier said than done.

A defense attorney should always inquire of his client whether there are prior DWI or Refusal convictions. If this privileged attorney-client information is affirmatively answered concerning a prior New Jersey DWI or Refusal, the attorney should always endeavor to order the client’s Motor Vehicle Commission driver’s abstract. If the same inquiry is made which reveals an out of state DWI or Refusal conviction, the defense attorney should ask the client to obtain his driving record from the other state. However, the defense attorney has no affirmative obligation to provide such information to the municipal prosecutor.

However, the defense attorney can never misrepresent to a municipal court judge whether there is an out of state conviction. This point must be emphasized. To reiterate, the defense attorney can never misstate or mislead the municipal court concerning the fact of a prior out of state conviction on his client’s behalf. These issues can become very complex as they relate to the client’s ultimate sentence and ethical considerations on the part of the defense attorney.

Regarding the specific question of the 2007 New York DWAI, there is a published New Jersey case concerning such a circumstance. State v. Zeikel, 423 N.J. Super 34 (App. Div. 2011). In this case, a three judge Appellate Division panel held that the New York DWAI did serve as a prior out of state conviction to enhance the defendant’s current New Jersey case. While this case has not received a lot of notice or comment in New Jersey DWI circles, it is a published case and is the law in our state.

The bottom line is that an individual with a current DWI, with a prior New York DWAI, should make this fact known to his New Jersey DWI attorney.

If you have been arrested for a DWI in NJ, and have been convicted in another state, give Attorney Matthew Reisig a call at 732-625-9660.

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