On April 5, 2022, the New Jersey Supreme Court decided the Monmouth County case of State v. Michael Konecny. There were two principal issues under N.J.S.A 2C:40-26. The first is whether DWI convictions can increase the custodial sentence for the crime of driving while suspended for a second or subsequent DWI or refusal. The second is whether a conviction vacated via post-conviction relief can serve as a predicate for a second or subsequent offense if the prosecution does not pursue a re-prosecution of the vacated conviction.
Justice Pierre-Louis wrote for a unanimous Court in relevant part: The State attempts to distinguish the progressive penalties for multiple DWI convictions as enhanced penalties in that statute but claims the 180-day sentence prescribed by Section 26 is a mandatory minimum sentence, not an enhanced penalty. That distinction places form over substance.
An individual charged with a first DWS violation whose suspension was not triggered by a DWI or Refusal conviction faces only a fine of $500 under N.J.S.A. 39:3-40(a). An individual who drives while suspended after being convicted of DWI, but who has no other prior DWI convictions, faces imprisonment for ten to ninety days under N.J.S.A. 39:3-40(f)(2). An individual who drives while their license is suspended after a second or subsequent DWI faces a minimum of 180 days’ imprisonment under N.J.S.A. 2C:40-26. Although N.J.S.A. 39:3-40 and N.J.S.A. 2C:40-26 are not found within the same title of the Code, they operate in tandem to establish escalating consequences for the same conduct — driving while suspended — based on a defendant’s number of past DWI or Refusal convictions. That is exactly what the DWI statute accomplishes with its enhanced sentencing scale. There is no principled distinction between the two sentencing schemes.
Here, the State is attempting to have its cake and eat it, too. Comedian Ben Bailey has a great bit about that proverb.