Justice Pierre-Louis continued in relevant part: The Appellate Division reached the opposite result in State v. Faison, 452 N.J. Super. at 394 -95. There, a different panel held that prior DWI convictions for which a defendant obtained PCR could not serve as predicate DWI convictions for a Section 26(b) prosecution. Id. at 395. The court noted that “convicting defendant of driving while suspended for a second or subsequent DWI conviction when he only has one prior DWI conviction would constitute a miscarriage of justice.” The Appellate Division distinguished Sylvester in noting that, “by the time of Faison’s trial on the [Section 26(b)] charge, he had only one prior DWI conviction,” whereas the defendant in Sylvester had been re-convicted of the DWI for which she had obtained PCR.
The State argues that Sylvester is the appropriate approach because, regardless of later relief or vacating of a conviction, for purposes of Section 26(b) offenses, the defendants drove in defiance of a then-valid court order suspending their license. Defendant, on the other hand, urges this Court to follow the reasoning of Faison that a vacated conviction through PCR cannot serve as a predicate for a Section 26(b) prosecution.
We agree that if a conviction is vacated through PCR, and the State does not initiate a second prosecution or the matter is otherwise dismissed, that conviction cannot then serve as a basis for charging a defendant with another offense. Fundamental fairness simply cannot abide such a result. One of the elements of a Section 26(b) prosecution requires that the defendant have two or more convictions for DWI or Refusal. See N.J.S.A. 2:40-26(b). If, at the time of the prosecution, the State cannot establish that element of the offense because one or more of the predicate convictions has been voided through PCR, the prosecution cannot proceed. The State remains free to charge those who drive while suspended with contempt of the court order prescribing their suspension. But the conviction — unlike the order of suspension — is erased when PCR is granted. In sum, we hold that a conviction vacated through PCR cannot be used as a predicate for a Section 26(b) prosecution.
The Court reaches the correct result here. The State’s reasoning also overlooks that a defendant who has a DWI conviction vacated and never re-instated ends up serving an onerous and unjustified sentence for which s/he is never compensated.