What is the difference between appealing my conviction and filing a Post Conviction Relief Petition? I was told I must appeal the conviction first.

There are major differences between appealing a DWI conviction from municipal court and filing a petition for post-conviction relief (PCR) pertaining to said conviction.

There is no requirement to filing a municipal appeal for a DWI conviction. A failure to file a municipal appeal does not bar an individual from subsequently filing a PCR petition. However, an individual who appeals his DWI conviction must exhaust all of his appellate remedies before filing a PCR.

Municipal appeals in New Jersey are governed by R.3:23. It must be filed within 20 days from the date of conviction. Another term for a municipal appeal is trial de novo. In essence, a municipal appeal of a DWI conviction (or any municipal court conviction) is where a case is decided anew based on the record in the trial court below.

In nearly all cases, there is no additional testimony in a municipal appeal. Rather, a transcript of the municipal court proceedings is provided to a Superior Court Judge in Criminal Part for review. A briefing schedule is set forth by the Superior Court judge in which the defendant files a brief, or written legal argument, in support of the municipal appeal.

The county prosecutor’s officer in the county wherein the municipal court conviction occurred then submits its own brief, or written legal argument, in opposition to the defendant. During the municipal appeal itself, the Court hears oral argument from the defense and the county prosecutor’s office, respectively. Then the Superior Court judge renders his decision.

The Superior Court judge is required to give due deference to the municipal court judge regarding the credibility of the witnesses who testified below. Not one deference is provided to the municipal court judge’s findings below. In all respects, the Superior Court judge decides the case “anew” on the transcript of the trial proceedings, the written legal arguments, and the oral argument provided during the trial de novo.

All factual and legal issues present in the record in the municipal court are available to a defendant. This is a marked distinction from an Appellate Division appeal in which only legal arguments can be presented.

A PCR in New Jersey is equivalent to a federal Habea Corpus petition. It is only available after the Defendant has exhausted his appellate remedies or if the Defendant did not pursue appellate remedies. However, a PCR cannot be predicated upon any issues that could have reasonably been raise on appellate review by a defendant.

A PCR petition from a municipal court conviction is governed by New Jersey Court Rule 7:10-2. It must be filed within 5 years of the date of the municipal court conviction or upon excusable neglect by the defendant. It is nearly impossible to file a timely PCR based upon excusable neglect by a defendant.

Therefore, it is imperative that a PCR petition be filed within the 5 year statute of limitations. PCR practice is very specialized. My Law Office has been on the cutting edge of filing PCR petitions for over 15 years. PCR petitions emanating from DWI convictions generally come in two varieties. The first is where the municipal court fails to properly accept a guilty plea and advise of the consequences of said plea which implicates constitutional notions of due process.

A PCR based on this theory can only be filed after first obtaining the transcript(s) of the guilty plea. These types of PCRs provided fertile ground for a defendant. The other type of PCR for a DWI conviction from a municipal court is where the defendant alleges ineffective assistance of counsel on the part of his trial counsel. This can be done in the context of a guilty plea or after a trial. This is a very particularized type of petition. If an individual has multiple convictions for DWI, they should consult with an experienced DWI attorney to determine if their prior convictions can be vacated by virtue of a PCR petition.

If you need assistance with appealing a conviction for DWI in New Jersey or filing a post conviction relief petition, contact attorney Matthew Reisig at (732) 625-9660.

State vs. (Client will remain Anonymous)
Eagleswood Municipal Court, Ocean County
Result achieved on Wednesday, May 22, 2013

This was a fascinating case. The client was charged with DWI, Refusal, and underlying motor vehicle charges. It was a State Police case. This means that the client’s matter contained a Mobile Video Recorder (MVR). The MVR did not reveal any erratic driving. This differed from the State Trooper’s written narrative. Moreover, there were no field sobriety test results since the client declined to perform them.

After his arrest, the client agreed to provide breath samples. However, he experienced extreme anxiety at this point and advised the State Trooper that he required immediate medical attention. The client felt that he was experiencing a cardiac event. The State Trooper felt that the client was faking such symptoms. Ultimately, emergency medical services transported him to a local hospital. After the transport, the State Trooper left the client in the care of the hospital.

The strategy in this case was to obtain medical records from both the hospital and the client to support his assertion that he was physically unable to provide breath samples upon request. Furthermore, an expert’s report was obtained which emphasized that there was no erratic driving, no performance of field sobriety tests, no behavior consistent with DWI, and a medical inability to provide breath samples.

The Defense in this client’s case was very specific to the facts presented. Simply put, it was that this client was not under the influence of intoxicating liquor and that he could not provide breath samples on this particular occasion. The Defense was not that this client could never provide breath samples. Rather this client could not provide breath samples at that particular moment in time.

This case resulted in a dismissal of the client’s DWI and Refusal charges. He plead guilty to Reckless Driving.

This was an extremely well-executed strategy for this particular client’s fact pattern. It was specific to the State’s discovery, the MVR, and information obtained from the client. This was state of the art advocacy.