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If you received a letter from the Monmouth County Prosecutor's Office regarding filing a Post Conviction Relief Motion to set aside a prior DWI, what should you do?

Posted by Carmine R. Villani | Dec 28, 2018 | 0 Comments

Recently in a case which shocked the legal community a NJ State Trooper was found to have failed to  follow proper protocol in calibrating Alcotest commonly referred to as breathalyzer machines.  This error affected as many as 20,000 DWI convictions.  Imagine the burden on the courts, the police departments and the prosecutors to retry 20,000 cold cases.

As recently as December of 2018 letters were sent to affected drivers convicted of DWI during the time frame which extends from 2008-2016. The notification advises drivers that they may wish to consider filing a Post Conviction Relief Motion.  This motion would have the effect of re-opening the prior DWI case if granted giving the affected driver the opportunity to challenge the original case without the State being able to use the BAC.(Blood Alcohol Content) reading.  The State would still be in a position to argue based upon the facts of the case that the driver was intoxicated based upon the other information in the case. This is referred to as an "observation case" which relies on the officers observations and all the other evidence aside from the breath reading to prove the driver was intoxicated.  The victory in some instances would be hollow as if  its a first offense and the upper tier violation (above .10% BAC) is reduced to a lower tier violation (below .10% BAC) it would effectively only change on paper.  The sentence will already have been served.  How does the driver get back the 4+ months of additional license suspension or the interlock (in-car breathalyzer) that the driver would have had placed in their car for the upper-tier DWI. These are questions to be determined, but the driver obviously cannot get that time back.    

In reality it is always best to have the conviction set aside.  The question will remain whether in the drivers case that is possible.  There are often complications for the State to retry an old case.   This can include, among other things, the unavailability of witnesses including the officers involved in the stop. 

The benefit of having the conviction set aside could have huge implications in the future if the driver were to receive a subsequent DWI and be charged a more severe penalty relying upon the old case.  Many cases will remain intact as the officer will be available, videos may be there to prove intoxication and in the cases where the BAC reading may have been disregarded by the court in the prior case for issues raised in the original defense.  Each of these matters is very case specific and calls upon the attorney reviewing the case to determine the viability of the challenge, but the State will really have its work cut out for it in reproving many of these convictions.  If you or someone you know received a letter or think you are affected get legal advice immediately.    

About the Author

Carmine R. Villani

Founding partner, Carmine Villani, Esq. is a former municipal prosecutor with over three decades of experience in Criminal and DWI Defense.


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