On April 27, 2016, the Appellate Division of New Jersey decided State v. Robert Luzhak (Docket No. A-2445-14T3). In this case, the defendant had a prior DWI conviction in Maryland and another in New Jersey. He was charged with the indictable offense of driving while suspended due to a second DWI conviction under N.J.S.A. 2C:40-26(b), which is a fourth degree crime that carries a term of imprisonment.
The defendant argued that the out of state conviction should not count against the defendant for the purposes of 2C:40-26(b). However, the Appellate Division found that a prior out of state conviction, under the interstate Driver License Compact, would count as a prior under 39:4-50(a)(3) for DWI sentencing and the same policy should be applied to 2C:40-26(b).
The defendant also argued that his driver’s abstract was inadmissible as hearsay since it contained information from Maryland. However, the Appellate Division ruled that it is admissible as a business record.
It is important to note the language in 39:4-50(a)(3) regarding out of state convictions which reads:
“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%.”
In other words, if you are charged with 2C:40-26(b), it is important for your attorney to investigate the prior out of state DWI conviction to see if it was based on a BAC of less than 0.08%. If the out of state DWI was in fact based on a BAC of less than .08%, then an argument can be made that it should not count as a prior conviction for the purposes of 39:4-50(a)(3) or 2C:40-26(b).