New Jersey Considers “Excusable Neglect” Argument by Defendant Who Sought Post-Conviction Relief More than Two Decades After DWI Case

The defendant in a DWI case appealed the denial of his motion for post-conviction relief (PCR), which the municipal court and the Superior Court, Law Division said was not filed in a timely manner. He claimed that he was not aware of his right to bring a motion for PCR, and he noted that he was not represented by counsel in his earlier DWI case. These factors, he argued, constituted “excusable neglect,” which would allow a court to waive the usual five-year deadline to bring a PCR motion. The Appellate Division disagreed, finding in State v. Reese that a lack of knowledge of the law does not excuse a late filing. The court’s decision underscores the importance of retaining knowledgeable counsel at the earliest stage of a DWI case.

The original DWI case began in August 1983, when the Hammonton Municipal Court issued a summons for driving while intoxicated and driving while license suspended. The defendant failed to appear at the September court date but called the court prior to the rescheduled court date that October. The court postponed the case several times in 1983 and 1984. It issued a bench warrant for failure to appear in March 1984, but when police tried to serve the warrant, they noted that the defendant no longer lived at his address on file.

The case remained inactive until May 1991, when the defendant tried to restore his driver’s license at the Department of Motor Vehicles and was informed that a case was pending against him in Hammonton. He appeared in court shortly afterwards without an attorney. He claims that he did not waive his right to counsel, and the court did not advise him of his right to a court-appointed lawyer. An entry on the back of the summons says that he was “advised as to rights” and then simply has the notation “waived.” The defendant pleaded guilty to the DWI charge.

In August 2012, the defendant was charged with DWI in Cape May. He retained an attorney, he claims, for the first time and filed a petition for PCR in Hammonton Municipal Court. The court denied the petition on the grounds that the defendant had waived his rights and pleaded guilty more than 22 years earlier. The Law Division made a similar ruling after a de novo review.

Rule 7:10-2(b)(2) of the New Jersey Rules of Court states that a defendant may not petition for PCR more than five years after the conviction or sentence at issue, unless they can show that the delay was caused by “the defendant’s excusable neglect.” In his appeal to the Appellate Division, the defendant argued that his “total lack of knowledge of any right or reason” to file a PCR motion was “excusable neglect” that would allow him to file the motion late. The court disagreed, citing Appellate Division and New Jersey Supreme Court cases holding that “lack of legal education” and “incorrect or incomplete advice” are not “excusable neglect.”

There are still many ways to obtain post conviction relief based on the specific facts and circumstances of each case.

The DWI attorneys at Levow & Associates fight to protect the rights of people who have been charged with alleged DWI in New Jersey. We have dedicated 100% of our law practice to DWI defense, and we are available around the clock to help you. To schedule a free and confidential consultation with a skilled and experienced legal advocate, contact us online or at (877) 975-3399.

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