The most onerous part of the sentence in most, if not all, DWI cases is the license suspension. The suspension can range from seven months for a first offense to 10 years for a third offense. Because so much of New Jersey life revolves around the ability to drive, virtually every DWI client focuses first and foremost on the loss of their driving privileges. Many DWI defendants choose to appeal their conviction and sentence, and trial counsel can ask the sentencing court to stay the sentence, including the license suspension, pending appeal. In State v. Robertson, decided March 8, 2017, our Supreme Court addressed the standard for a stay pending appeal at two stages. The first is a stay pending appeal from the municipal court to the Law Division of the Superior Court for a trial de novo. The second is a stay pending appeal from a trial de novo in the Superior Court, Law Division, to the Appellate Division.
Robertson had a BAC (blood alcohol concentration) of .13. He was convicted of a first offense DWI and, as part of his sentence, his license was suspended for seven months. The municipal court stayed the license suspension for 20 days to allow Robertson time to commence an appeal. After the trial de novo in the Law Division, the court found the defendant guilty and imposed the same sentence. Defense counsel sought to continue the stay of the license suspension pending further appeal, but the State opposed the request. The Law Division judge granted the application, providing the defendant filed his appeal with 10 days.
On further appeal, the Appellate Division observed that both of the lower courts stayed the license suspension pending appeal “without providing any statement of reasons.” The Court sought guidance for the standard for a stay in a DWI case in existing case law, stating that if a stay is granted, driving may be limited to such activities as employment, or conditioned upon the installation of an ignition interlock device among restrictions. The Supreme Court granted defendant’s petition for certification so as to address an issue of significant public importance concerning the standards for a stay of sentence in a DWI case.
The Supreme Court ultimately found that DWI defendants applying for a trial de novo before the Law Division should be presumptively eligible for a stay of a license suspension. The State can, however, overcome this presumption by showing that a stay would present a serious safety threat to an individual or the community. If the State makes this showing, the stay will not be granted unless vehicle usage can be conditioned in a way that mitigates the perceived risk. However, a DWI defendant convicted after a trial de novo in the Law Division has the burden to justify a stay of the license suspension pending further appeal to the Appellate Division by showing: (a) the case involves a substantial question that should be determined by an appellate court; (b) the safety of individuals or the community will not be seriously threatened by the stay; and (c) the defendant does not present a significant flight risk. Further, if the Law Division grants the stay, it can also impose conditions that are appropriate under the circumstances. Finally, both municipal and Law Division judges should set forth on the record the reasons underlying their rulings.
Against this backdrop, obtaining a stay pending appeal in the municipal court should be a relatively simple application, unless the State can demonstrate real safety concerns associated with a defendant’s continued vehicle operation that cannot be mitigated by imposing appropriate conditions. If, however, the defendant’s conviction is upheld in the Law Division, continuing the stay pending further appeal to the Appellate Division may be much more difficult because of the shift in the burden, coupled with potential difficulties in satisfying all three prongs of the foregoing test.
James S. Friedman, Esq., represents defendants charged with DWI, as well as other vehicle/traffic and criminal offenses, in municipal courts throughout New Jersey. If you have a DWI or other municipal court matter, contact us immediately to start planning your defense.