Are convictions for “driving while ability impaired” (“DWAI”) in New York treated as prior convictions for sentencing enhancement purposes in subsequent New Jersey drinking while impaired (“DWI”) convictions?
In State v. Zeikel, 30 A.3d 339 (App.Div. Nov. 9, 2011), the appellate division decision held that such prior convictions do, in fact, count for sentencing enhancement purposes.
In Zeikel, the defendant was appealing his treatment as a third-time offender after a DWI conviction in New Jersey on June 15, 2010, stemming from an offense on December 6, 2009. “Third-time offender”-status carried with it a 180 day jail sentence, a ten year driver’s license suspension, and other fines and penalties. Defendant’s prior drunk driving related offenses included DWAI offenses in New York in September 1981 and June 1984 and a DWI in New Jersey in October 1994.
The relevant New Jersey DWI statute, N.J.S.A. 39:4-50(a), provides enhanced penalties for a second offense and again for a “third or subsequent violation.” However, the statute provides for a “step down”, which would limit enhancement of sentencing in certain situations. If a second offense occurs more than 10 years after the first offense, the court will treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court will treat the third conviction as a second offense for sentencing purposes.
For Defendant’s 1994 New Jersey DWI conviction, the defendant was treated as a first-time offender, despite having the two prior New York DWAI convictions. Therefore, defendant argued, since more that 10 years have elapsed since his 1994 conviction and his current conviction, he should have been sentenced as a first-time offender again under the “step down” provisions of N.J.S.A. 39:4-50(a)(3) (described above). Both the Municipal Court and the Law Division rejected the defendant’s arguments and instead counted his New York DWAI convictions for sentencing enhancement purposes, and thus treated him as a third-time offender.
Defendant put forward three arguments on appeal to the appellate division. First, the amendment of the statute allowing out-of-state convictions to count for sentencing enhancement purposes, was enacted after his New York convictions and thus violated the constitutional provision against ex post facto laws. Second, defendant claimed that there was sufficient evidence that his first New York DWAI conviction was below the BAC threshold required to count as a prior offense under the contemporaneous New Jersey Statute. Third, defendant claimed that both of his New York DWAI convictions were not “substantially similar” to the New Jersey DWI statute and therefore must be excluded for sentence enhancement purposes.
The appellate division rejected all of the defendant’s arguments and held that the municipal court properly treated him as a third-time offender for sentence enhancement purposes. Addressing the first argument, the court acknowledged that the amendment to N.J.S.A. 39:4-50, allowing out-of-state convictions “of a substantially similar nature” to count as prior convictions, was enacted in 1997, well after both of defendant’s New York DWAI convictions. Nonetheless, the court held that as long as the law was “on the books” at the time that the triggering offense was committed, an enhanced sentence would not offend the ex post facto provisions of the Constitution. Since the triggering offense here occurred in 2009, and the amendment was enacted in 1997, there was no ex post facto issue.
Next, the court rejected the argument that the 1981 conviction was based on a conviction below the required New Jersey BAC threshold. No records existed from defendant’s 1981 conviction, and the defendant certified that his BAC was .06% for the 1981 DWAI charge. Nonetheless, the court held that defendant had not met his burden to provide “clear and convincing evidence” that the prior out-of-state conviction “was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.” The court also noted that defendant did not have a right to notice of recidivist sentencing enhancements at the time of the prior convictions.
Finally, the appellate division held that the New York DWAI statute was, in fact, “of a substantially similar nature” to the New Jersey DWI statute. However, the court cautioned that not every out-of-state law regarding consumption of alcohol and driving will be treated as “substantially similar” for sentence enhancement purposes. For there to be substantial similarity, the out-of-state statute must “require the consumption of alcohol to cause some degree of impairment on the defendant’s driving ability.” Such impairment need not rely on, and would not necessarily turn on, evidence of the BAC level. The New York statute required such alcohol-induced impairment and was, therefore, counted as a prior conviction for sentencing enhancement purposes.