When to Petition for Post-Conviction Relief in DUI/DWI Case in New Jersey?

November 2, 2016

When choosing an attorney for a second or subsequent offense of DWI, it is critical that you consider legal counsel with the foresight to know when to petition for post-conviction relief. The “Laurick Rule,” as derived from the final ruling of the 1990 State v Laurick case, is used in New Jersey as a means to lighten a sentencing, allowing relief from incarceration if you were not represented by legal counsel in one or more prior DWI/DUI cases.  If you were without legal counsel at your previous DWI hearings, you may be eligible to use the Laurick application, which could alter the outcome of a previous ruling.

In this particular case, the defendant, David Laurick, was convicted by a municipal court in the state of New Jersey of driving while intoxicated.  He had been convicted of the same offense once prior, hence, in accordance with N.J.S.A. 39:4-50(a)(2), Laurick was subject to the following penalties as a second-time offender:

For a second violation [of operating a motor vehicle while under the influence of intoxicating liquor], a person shall be subject to a fine of not less that $500.00 nor more than $1000.00, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days, and shall forfeit the right to operate a motor vehicle over the highways of this State for a period of two years upon conviction…

 Laurick opposed the imposition of the enhanced penalty, arguing that the first conviction should not be considered since he was not then represented by counsel.  Laurick testified that he not only lacked counsel when convicted, but also that he had not been advised of his right to counsel and had made no knowing waiver of that right.  Such evidence was received supporting the defendant’s claims, and the state, in turn, was unable to provide any contradictory evidence.

The judge sentenced Laurick as a first offender, and ruled that the defendant’s prior uncounseled conviction could not be used to enhance punishment.  In delivering his ruling, the judge relied on Rodriguez v. Rosenblatt, 58 N.J. 281 277 A.2d 216 (1971), which established a right to counsel whenever the defendant may be exposed to a “consequence of magnitude.’  It was Rodriguez v. Rosenblatt that established the right to counsel for all indigent and non-indigent persons.

In State v. Laurick, the judge upheld such considerations of fairness, stating that “as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.”  In sum, a prior DWI conviction that was uncounseled in violation of court policy may not be used to increase a defendant’s loss of liberty.   A defendant may not suffer an increased period of incarceration as a result of a Rodriguez violation that led to an uncounseled DWI conviction.

If you are questioning your right to employ the Laurick rule, you must first consider the three determinate requirements for this legal application:

1. Indigent defendants must establish that they were not given notice of their right to counsel and advised that counsel would be provided for them if they could not afford anyone
2. Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the tie they entered the uncounseled pleas
3. Defendants who establish that they were not adequately noticed of their right to counsel must them demonstrate that if they had been represented by counsel, they had a defense to the DWI charge and the outcome world, in all likelihood have been different

If all three of these determinate factors apply to you, consider an attorney who will not only provide expert defense, but will strive for post-conviction relief by way of employing landmark cases, such as State v. Laurick.  At Lubiner, Schmidt, and Palumbo, we take great care to ensure that your livelihood is not altered by extreme or unfair incarceration sentences.  If you are convicted for a repeat DWI offense and remained uncounseled for a previous trial(s), call and speak with one of our attorneys today.