The Court continued in relevant part: And it is hardly the case that Section 26(b) is a purely distinct offense separate and apart from N.J.S.A. 39:3-40, given the fact that Section 26 specifically incorporates that statute by reference. See N.J.S.A. 2C:40-26(b) (“It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of N.J.S.A. 39:3-40.”
Pursuant to Section 26(b), a defendant convicted of DWS after two or more DWI or Refusal convictions is subject to a greater loss of liberty than he would have been had he not had the prior convictions. Although the facts of Laurick dealt with DWI convictions, nothing in the opinion limited its right-to-counsel principles to DWI matters. If a defendant obtains Laurick relief on a prior DWI or Refusal conviction, fairness dictates that the conviction upon which relief was granted cannot be used to increase that defendant’s sentence for DWS to 180 days’ imprisonment. In sum, we hold that a conviction for which a defendant has been granted Laurick relief cannot be used to increase a DWS sentence pursuant to Section 26(b).
The Court then addressed the second issue in relevant part: This Court has yet to rule on the issue of whether a conviction vacated through PCR can serve as a predicate to a Section 26(b) prosecution. Two Appellate Division decisions have considered that issue and arrived at conflicting holdings. In State v. Sylvester, the Appellate Division upheld a conviction under Section 26(b) notwithstanding the defendant’s receipt of PCR on one of her three DWI convictions. The defendant filed a motion to dismiss her indictment, arguing that her receipt of PCR had voided that DWI and the accompanying period of license suspension. The Appellate Division rejected that argument on the ground that the defendant drove while “she knew her license was suspended pursuant to a presumptively valid court order,” behavior “reasonably characterized as contemptuous of the court’s authority.” The court also determined that this Court’s remedy in Laurick “applied only to the custodial term required for repeat offenders in a DWI conviction under N.J.S.A. 39:4-50,” not to Section 26(b) convictions.
An unspoken consideration of the Sylvester Court was likely the efficient administration of justice and limiting the backlog of pending cases in our state courts. But not allowing for Laurick relief in the context of 2C:40-26 cases, it would have discouraged numerous post-conviction relief applications and the related appeals.
