Lawyer Challenges His DUI Plea Based On Lack Of Counsel

Henry Aratow was convicted of driving while intoxicated (DWI)(N.J.S.A. 39:4-50) in 1988, pled guilty to a driving under the influence (DUI) in 2004, and pled guilty to a 2009 in 2011. In the case of the 2009 DUI, Aratow was sentenced as a third offender resulting in a 10 year loss of driving privileges and 180 days incarceration. In 2013, Aratow sought post conviction relief from in the municipal court and then Superior Court of New Jersey, Law Division, Morris County with regard to the 2004 DUI in order to avail himself of the step-down provisions under State v. Revie, 220 N.J. 126 (2014), pertaining to successive DUI convictions. The relief sought was denied and Aratow appealed to the NJ Appellate Division. In 2004, Aratow was stopped by police and charged with DWI, refusal to submit to a breath sample (N.J.S.A. 39:4-50.2), and making an improper turn (N.J.S.A. 39:4-116). Both at the time he was stopped by police and when he appeared in court for the resulting charges, Aratow was a practicing attorney. Aratow waived his right to counsel and entered into a plea to operating a motor vehicle with a blood alcohol content (BAC) between .08 and .10 with a dismissal of the refusal to submit to chemical breath testing and the improper turn charges. At the time of the 2004 plea, the municipal court judge engaged in lengthy colloquy with the defendant regarding his right to counsel, the factual basis of his plea. The NJ Appellate Division determined that the Aratow was not advised by the municipal court judge of the progressively harsher consequences of successive DUI convictions and, therefore, did not knowingly, voluntarily, and intelligently enter into the plea as required under N.J. Court Rule 7:6-2(a)(1). The court also questioned the sufficiency of the factual basis given by the defendant, as set forth in State v. Campfield, 213 N.J. 218 (2013). The court found that, although Aratow admitted to operating a motor vehicle after consuming 3 vodka and tonics, he was not questioned as to whether he believed that the alcohol he consumed substantially impaired his ability to operate the vehicle or that his BAC was between .08 and .10. Under State v. Barboza, 115 N.J. 415 (1989), the remedy for a plea entered with an insufficient factual basis is to reinstate all charges and restore the matter to its original status prior to the entry of the plea. Accordingly, the NJ Appellate Division reversed and remanded the 2004 matter for a new trial. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DUI Step-Down Is Not Limited To One Use Per Driver

The NJ driving under the influence (DUI) statute (N.J.S.A. 39:4-50) includes a provision wherein a “step-down” in sentencing occurs after any ten (10) year period in which an individual charged with a prior DUI receives a lesser level penalty for a subsequent DUI. For example, pursuant to N.J.S.A. 39:4-50(a)(2), if an individual was convicted of their first DUI in 1986 and a second DUI in 1994, they would be sentenced, among other penalties, to a two year loss of driving privileges as a second offender in 1994. However, pursuant to N.J.S.A. 39:4-50(a)(3), if an individual was convicted of their first DUI in 1986 and a second DUI in 1997, more than ten (10) years later, they would be sentenced to, among other penalties, a seven to twelve month loss of driving privileges as a first-offender in 1997. In State v. Revie, the defendant, James Revie was convicted of a fourth driving while intoxicated (DWI) charge in 2011 in Wharton, NJ after an initial DWI in 1981 in Hillsdale, NJ, a second and uncounseled DWI in 1982 in Bogota, NJ, and a third DWI over ten (10) years later in 1994 in Montvale, NJ. Due to the fact that the second DWI was uncounseled and the defendant should have received the benefit of the step-down provision for the ten (10) year lapse between the second and third DWI convictions, the defendant argued that, for the 2011 DUI, he should be sentenced as a second-offender with regard to any term of incarceration. However, the Municipal Court Judge sentenced him as a third-offender refusing to read N.J.S.A. 39:4-50(a)(3) as providing more than one “step-down” benefit to any driver. The NJ Superior Court, Law Division, Morris County affirmed as did the NJ Appellate Division. The NJ Supreme court held that there is no indication that the Legislature intended for a defendant meeting the requirements of the “step-down” provision on more than one occasion to be entitled to the benefits thereof on only one such occasion. In addition to the Legislative intent, included in the NJ Supreme Court’s consideration were also State v. Laurick, 120 N.J. 1, 498 U.S. 967, 111S.Ct. 429, 112 L. Ed. 2d 413, (1990) and State v. Hrycak, 184 N.J. 351 (2005) as they pertained to Revies’ second and uncounseled DUI and State v. Conroy, 397 N.J. Super. 324 (App.Div. 2007) as it pertained to a defendant sentenced with the benefit of Laurick and the “step-down” provision of N.J.S.A. 39:4-50(a)(3). The matter was remanded to the Law Division for re-sentencing as a second-offender. DUI charges, whether for alcohol or drugs, are very serious charges which can lead to incarceration and loss of driving privileges up to ten years. If you are facing charges for DUI it is critical that you obtain experienced defense counsel immediately. For more information about DUI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.