Sentence and Appeal
1. What other post-convictions applications can a DWI defendant file?
The Rules of Court provide a variety of legal procedures that can be used by a DWI defendant to challenge his DWI conviction. These applications include a motion to reconsider the judgment, a motion to withdraw a guilty plea, a motion for a new trial, a motion for reconsideration of the sentence, and a motion to correct an illegal sentence.
2. What is a motion for a reconsideration of the court’s decision?
Rule 1:7-4 provides a legal procedure for parties to an action heard in municipal court to petition the judge to reconsider his findings of facts and conclusions of law. Typically, in a DWI prosecution a motion for reconsideration is appropriate when the court fails to make factual findings related to the basis for finding of guilt. In the case of State v. Sisti, 209 N.J. Super. 148 (App. Div. 1986), the Appellate Division mandated that Municipal Court judges make such findings in DWI cases. A motion under Rule 1:7-4 is also appropriate when the court has misinterpreted the law or has made a mistaken application of the law to the factual findings at trial.
The time requirement for filing a motion to reconsider is set at 20 days from the date of the entry of the final judgment. Any motion to reconsider must be also filed with a brief and certifications.
3. What is a motion for a new trial?
There are strict time limits to file a motion for a new trial. There are three separate time limits for Rule 7:10-1 to request a new trial.
a. Newly Discovered Evidence – 2 years. The time for this application begins to run on the date of the entry of the final DWI judgment. In a DWI case this is the date of the imposition of sentence.
b. Fraud or Lack of Jurisdiction – No time limit. In some DWI cases evidence may surface that the police may have falsified the evidence. There have been cases wherein it has been discovered that the police falsified BAC results. If this type of evidence should surface, then a DWI defendant can go back to the Municipal Court and file a motion for a new trial.
c. Other grounds – 10 days. Any other application for a new trial, such as an assertion that the court’s decision was against the weight of the evidence, must be made within 10 days from the entry of the judgment of conviction.
4. Could you please explain how I can file a motion for a new trial in my DWI case based on newly discovered evidence?
There are two requirements to seek a new trial in Municipal Court based upon an allegation of newly discovered evidence. First, there is a time limitation. Rule 7:10-1 requires that this type of application be made within two years after the entry of the final judgment. Typically, this will be dated from the imposition of a sentence in court. The second requirement is that the defendant must demonstrate that the newly discovered evidence entitles him to relief. It is well settled that newly discovered evidence warrants a new trial only if the evidence is;
a. material to the issue and not merely cumulative, impeaching or contradictory;
b. discovered since the trial and was not discoverable by reason b of diligence beforehand;
c. is of the sort that would probably change the Municipal Court judge’s decision if a new trial were granted.
The determination of a Municipal Court judge in either granting or denying a motion of a new trial on the basis of new evidence is a matter of discretion that will not be overturned on appeal unless there is a clear abuse has been shown. New Jersey Municipal Court judges are afforded a great degree of latitude in making these determinations, since as the fact-finder, the judge has the opportunity to observe and hear the witnesses as they testified. On a motion for a new trial based upon newly discovered evidence, the question as to whether the result of the trial would have been different is a mixed question of fact and law. Normally, the facts as found by the Municipal Court judge, are entitled to substantial deference by a reviewing court. On appeal, the factual decisions of the Municipal Court judge are restricted to the test of whether the findings could reasonably have been reached given the credible evidence in the record.
The seminal case for a motion for a new trial based on new evidence in a DWI case is State v. Gookins, 135 N.J. 42 (1994). In the Gookins case the court consolidated the appeals of three defendants who pled guilty in the Oaklyn Municipal Court to DWI case. The arresting officer in each of the case was subject of a criminal investigation for falsifying the results of the breathalyzer tests and theft in other drunk driving cases unrelated to those of the tree appellants. The criminal investigation ultimately resulted in the officer’s conviction and incarceration. As a result, the three appellants moved for a new trial before the municipal court on the basis of newly discovered evidence. There applications were denied in the Municipal Court.
A divided panel of the Appellate Division also denied their request for a new trial. The Supreme Court reversed the decision of the Appellate Division. The Court held that there are two independent ground available grounds available for granting the appellants a new trial on the basis of newly discovered evidence. First, the court ruled that the evidence of the arresting officer’s subsequent conviction for falsifying breath tests results could be admissible for impeachment purposes as evidence of “other crimes, wrongs or bad acts” under NJRE 404(b). The court found that the standard to be applied for using ths type of evidence was relaxed when the proponent of the evidence is the defendant.
Normally, it is the State who seeks to utilize this type of evidence against a defendant. When this occurs, there is a high probability of prejudice to the defendant. However, the possibility of prejudice to the defendant does not exist when the evidence is introduced as part of the defense case. In addition to the use of “other crimes” evidence under NJRE 404(b), the Supreme Court also ruled that a new trial was necessary in the interest of justice. The Court found the conduct of the police officer shocking, and found that and found that a remand for a hearing as to whether the cases could be prosecuted without the tainted evidence of the arresting officer was vital in order to maintain the public’s confident in the integrity of the courts.
5. What are the legal standards to obtain a new trial if there are Brady violations?
If there is police misconduct in the criminal court systems, then a DWI defendant can file a motion for a new trial. In the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the US Supreme Court held that when a prosecutor withheld potentially exculpatory evidence from the defense, corrective justice is necessary, not for the punishment of society due to the misdeed of the prosecutor, but in order to avoid an unfair trial for the defendant. Society wins not only when the guilty are convicted but when criminal trials are fair. Our systems of criminal justice suffers when any accursed defendant is treated unfairly. Thus, by virtue of Brady v. Maryland, it is now well settled that a defendant is entitled to evidence in possession of the States that is exculpatory in nature. A failure by the State to provide exculpatory materials to the defense can constitute a denial of due process and thereby entitle a defense to a new trial under Rule 7:10-1.
6. What is necessary for a defendant to establish a Brady violation in a DWI case?
In order to establish a Brady violation in a DWI case, the defendant must prove the following facts.
a. The prosecution suppressed evidence in violation of Rule 7:7-7;
b. The evidence that was suppressed by the State is favorable to the defendant;
c. The evidence is material. For the evidence to be deemed to be material, the defendant must demonstrate that there is a reasonable probability that had been disclosed to the defense, the result of he proceeding (either a plea or trial) would have been different.
Exculpatory evidence includes not only material that are directly exculpatory of the defendant but also evidence that may impeach the credible of the State’s witnesses. However if the suppressed evidence is merely cumulative or repetitive as to the purpose for which it was supposed to have been used, then the conviction should not be set aside. State v Robertson, 333 N.J. Supers. 499 (App. Div. 2000).
Any court that is considering a motion for a new trial base upon an allegation of a Brady violation must look to the total of the evidence suppressed, rather than view in isolation the impact of each discrete item withheld. In doing so, the court can properly determine if there is a reasonable possiblility that the result of the prior decision to plead guilty or the results of the DWI trial would have bene different had the wrongfully suppressed evidence been disclosed. See, State v. Knight, 145 N.J. 233, (1996); State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001); State v. Mustard, 411 N.J. Super. 91 (App. Div. 2009).
A good example of a Brady violation in a DWI case would be if a police department intentionally withheld evidence that the Acutest machine continually produced false results. Another example would-be if the prosecutor intentionally without the Alcostest operates expired operation’s certification.
7. What is an illustrative DWI case wherein a defendant received a new trial based on a Brady violation?
A good example of an allegation of a Brady violation in a DWI case occurred in State v. Mustaro, 411 N.J. Super. 91 (App. Div. 2009). Here, the police destroyed certain in-car videotape evidence of the defendant’s arrest. The defendant argued that had he known of the potentially exculpation nature of the videotape, he would not have plead guilty. The Appellate Division ruled that in order to establish a due process violation under Brady case, the defendant must show that an exculpatory value that was apparent before the tape was destroyed and the defendant would be unable to obtain comparable evidence by their reasonably available means. The evidence before the court was insufficient in that it only included defendant’s speculation that the tape had potential exculpatory value, and was utterly devoid of any suggestion that the police had acted in bad faith by desiring the videotape evidence.
8. What is a motion to withdraw a guilty plea?
In some cases a DWI defendant may want to consider filing a motion to withdraw a guilty plea. Most applications to withdraw a plea must be based upon the “manifest injustice” standard. Typical of the circumstances in a DWI case that will constitute a manifest injustice is some type of unanticipated collateral consequence of the plea that has the effect of devastating the defendant. For example, a plea of guilty to a violation of N.J.S.A. 39:4-50(a) will bar the defendant from seeking recovery in a civil action for economy and non-economic damages. Such a circumstance may constitute a manifest injustice in those cases where the defendant has suffered serious personal injuries and was unaware that the plea would have this collateral consequence.
When evaluating the bona fides of a motion to withdraw a plea, the motion judge used evaluate and balance four factors, including;
a. whether the defendant has asserted a callable claim of innocent.
b. The nature and strategy of the defendants reason so withdrawal;
c. the existence of a pea bargain; and
d. whether withdrawal would result in unfair prejudge to the state or unfair advance to the defendant.
When considering this type motion, no one single fact among these is mandatory, and if one is missing, that does not automatically either disqualify or dictate a granting of the defendant’s application.
9. What is a motion to reconsider a DWI sentence?
A very common motion is to file a motion to reconsider a DWI sentence. Rule 7:9-4 provides:
Rule 7:9-4. Reduction or Change of Sentence
(a) Time. The court, its discretion, may reduce or change a sentence, either on its own motion or on the motion of the defendant, which may be either oral or written, at any time during which the court retains jurisdiction over the matter.
(b) Procedure. All changes of a sentence shall be made in open court upon notice to the defendant and the prosecuting attorney. An appropriate order setting forth the revised sentence and specifying ht change made and the reasons for the change shall be entered on the record.
The main utility of this rule is that it allows the defendant an opportunity to reduce any driver’s license suspension time. A perfect example when a defendant should file a motion for a reduction of sentence is when a defendant has been involved in an accident, and he has been sentenced to a one year lost of driver’s license as a first offender. Rule 7:9-4 provides that the defendant with the opportunity to file a motion to reduce his sentence. If the defendant enters and completes an alcohol rehab program, and if he has paid his restitution, then the defendant could have an excellent chance have his sentence reduced. In summary, if a DWI defendant received an excessive sentence, and after his sentencing he has improved his life, went to AA and to rehab, then he can go back to court and ask for a sentence reduced.
