Haines, A.j.s.c. (Sitting as Municipal Court Judge).
The defendant Laurick was convicted by a municipal court of driving while intoxicated. He has now been convicted of the same offense a second time. N.J.S.A. 39:4-50(a)(2) provides:
For a second violation [of operating a motor vehicle while under the influence of intoxicating liquor], a person shall be subject to a fine of not less than
$500.00 nor more than $1000.00, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days, and shall forfeit his right to operate a motor vehicle over the highways of this State for a period of two years upon conviction. . . .
Laurick opposes the imposition of the enhanced penalty, arguing that the first conviction should not be considered for that purpose since he was not then represented by counsel. Evidence was received with respect to that claim. Laurick testified that he not only lacked counsel when convicted but also that he had not been advised of his right to counsel and had made no knowing waiver of that right. The State presented no contradictory evidence.
The rule for which the defendant contends is the law of this State. A prior conviction of a non-indictable offense may not be used for sentence enhancement purposes when (1) the punishment for that offense was a "consequence of magnitude"; (2) the defendant was not represented and (3) there was no intelligent waiver of counsel. The rule has evolved from the New Jersey Supreme Court's opinion in Rodriquez v. Rosenblatt, 58 N.J. 281 (1971), in which the Court said:
[A]s a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.
[W]henever the particular nature of the charge is such that imprisonment in fact or other consequence of magnitude is actually threatened or is a likelihood on conviction, the indigent defendant should have counsel assigned to him unless he chooses to proceed pro se with his plea of guilty or his defense at trial. [at 295]
A substantial loss of driving privileges is a "consequence of magnitude." State v. Sweeney, 190 N.J. Super. 516, 524 (App.Div.1983).
Prior appellate opinions on the subject, while discussing the rule, have not applied it. They require analysis.
State v. Bowman, 131 N.J. Super. 209, aff'd, 135 N.J. Super. 210 (App.Div.1975), suggested the rule. Bowman was twice convicted of driving a motor vehicle without insurance coverage. The second conviction mandated imposition of a three-month prison term and revocation of ...