The Law Offices of Jonathan F. Marshall receives requests from individuals seeking to reopen prior New Jersey convictions for driving while intoxicated, driving under the influence or refusal. The relief which is being sought in these situations is referred to as Post Conviction Relief (“PCR”).
Post conviction relief from a drinking and driving conviction in New Jersey is set forth at Rule 7:10-2. The grounds for post conviction relief in a DWI, DUI or refusal case include:
- A substantial denial of a constitutional right in conjunction with the drunk driving conviction;
- Lack of jurisdiction on the part of the municipal court that imposed the order of conviction for driving while intoxicated, driving under the influence, or refusal;
- The sentence imposed for the drunk driving offense was excessive under the law; or
- Any other ground available as a collateral attack under the law.
The PCR rule also imposes a five (5) year time limitation from the date of conviction but this time limit may be relaxed in two instances: First, where the application is based on an illegal DWI, DUI or refusal sentence and, second, where the delay was based on excusable neglect. It is also important to keep in mind that a PCR application will not be entertained where a litigant already possesses a right of appeal. The burden of proof on a post conviction relief application is a preponderance of the credible evidence.
PCR applications are typically encountered in four instances in New Jersey drinking and driving cases: (1) where it is alleged that the sentence, either jail or license suspension, was excessive; (2) where a litigant seeks to vacate a plea based on a lack of a factual basis taken at the time of the plea consistent with State v. Barboza; (3) where a litigant is attempting to avoid incarceration and is alleging a State v. Laurick defense (was not represented by counsel previously); or (4) where there is a claim of ineffective assistance of counsel.
If you believe you may have a valid basis for post conviction relief and want to reopen a prior DWI plea or conviction, please contact one of the New Jersey DWI attorneys at the Law Offices of Jonathan F. Marshall.
