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New York DWAI Similar to New Jersey DWI

Posted by Carmine R. Villani | Dec 04, 2011 | 0 Comments

A New York DWAI Could be Used to Enhance the Penalties of Your Current New Jersey DWI Conviction

In a recent Superior Court of New Jersey Appellate Division case, State v. Zeikel, the question of sentencing for repeat offenders of New Jersey DWI laws was addressed. More specifically, the Appellate Division had to decide if two prior DWAI (Driving While Ability Impaired) charges from New York State had any bearing on the enhanced sentencing as a repeat DWI offender in New Jersey. The Appellant, Jeffrey Zeikel argued that they should not have any bearing on his current New Jersey DWI sentencing because the New York DWAI charge is not “substantially similar” to the New Jersey DWI, DUI, Refusal statute. This is a requirement under N.J.S.A. 39:4-50 which reads: “A conviction of a violation of a law of substantially similar nature in another jurisdiction…shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration (BAC) of less than 0.08%.”
In defining the statutory language of “substantially similar” the court ultimately ruled that a New York State DWAI is similar to a New Jersey DWI. The statutory language places the burden of proving that it is NOT “substantially similar” on the defendant. In other words, Mr. Zeikel needed to show by “clear and convincing evidence” that the New York DWAI conviction was based exclusively on a violation that proscribed a BAC of less than 0.08%. In this case, Mr. Zeikel could not present the appropriate evidence as the older New York DWAI's occurred in the 1980's. Due to their age, the proper New York authority no longer had an evidentiary record of them. Simply, if the defendant cannot introduce evidentiary proof (whether it is available or not), the prior convictions will serve to enhance the punishment of the current New Jersey DWI charge.
The court also relied on previous holdings on the same issue, which was quite damaging to the defendant's case. According to Div. of Motor Vehicles v. Lawrence, the court held that a New York DWAI was “of a substantially similar nature as a New Jersey DWI conviction,” and in comparing the language and policy goals of the New York and New Jersey statutes, the court concluded that, ” both laws deal with alcohol related offenses and are aimed to deter and punish drunk drivers.” Essentially, the New Jersey court gave full faith and credit to the New York DWAI statute when it decided to use a prior conviction under it for enhancement purposes.

Contact Villani & DeLuca for Help with DWI or DUI

If you have been charged with a New Jersey DWI and have prior convictions under another state's DWI statute, you need to contact an experienced New Jersey DWI attorney to help mitigate your penalties. Contact experienced New Jersey DWI lawyer, Carmine R. Villani, Esq. of Villani & DeLuca, P.C. for a free initial consultation. Call (732) 709-7757 today!
State v. Zeikel, Superior Court of New Jersey, Appellate Division, Docket No. A-1495-10T4, approved for publication November 9, 2011.

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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