No Dismissal of Refusal in Exchange for 1st Offense DWI Plea

Late this afternoon, the Administrative Office of the Courts on behalf of the Chief Justice and the Supreme Court issued a press release and a notice to the bar which announced an important amendment to the Guidelines controlling the practice of plea bargaining in municipal court. Under the amended Guidelines, a first offender charged with drunk driving and refusal to submit to a breath test may no longer conclude a plea agreement that calls for a dismissal of the refusal charge in exchange for a dismissal of the refusal charge. It is important to note the following details related to the Court’s amendment:

1. First offenders only – The prohibition on the dismissal of refusal charges in exchange for a plea to the dwi charge is limited only to first offenders. A plea agreement that calls for the dismissal of a refusal charge in exchange for a plea to the dwi ticket is still permitted for second or subsequent offenses.

2. Concurrent suspensions – A plea agreement for a first offense that call for a plea of guilty to both the dwi and refusal charges in exchange for a recommendation of concurrent driver’s license suspensions is still permitted. Although not discussed in the Guideline amendments, such a plea bargain would be illegal for second and subsequent dwi offenses since the statutes require consecutive suspension in these cases.(N.J.S.A. 39:4-50.4a(a)).

3. The effective date of the amended Guidelines is July 1, 2005.

4. Other downgrades – The amended Guidelines also prohibit a plea agreement that calls for a plea of guilty to a violation of N.J.S.A. 39:4-50(a)(1)(i) (BAC of .08% but less than 0.10%) when the defendant’s BAC is 0.10% or greater.

5. The Court’s announcement comes as a surprise in that the Justices did not wait for the beginning of the new Court year in September. The reasoning that went into the Court’s decision is spelled out in the press release that follows.

Also, attached to this Muni-mail is a copy of the Notice to the Bar and the Amended Guidelines that go into effect in 2 weeks.

For immediate release: June 15, 2005
For further information contact
Winnie Comfort, AOC
Tamara Kendig, AOC
(609) 292-9580

Change in DWI Plea Agreements in Municipal Court

New Jersey Chief Justice Deborah T. Poritz has signed an order amending the “Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.” As explained in the Notice to the Bar signed by Administrative Director Judge Philip S. Carchman, the plea agreement guidelines are being amended to address issues raised by two recent changes to New Jersey’s drunk driving laws.

“These changes in the law set up a scenario whereby drivers who were stopped for suspected drunk driving for the first time and who refused to take a blood alcohol test could take advantage of a ‘loophole’ in the system,” said Judge Carchman.

In January 2004, the Legislature amended the law to add a new level of offense for drivers with a blood alcohol content (BAC) of 0.08 percent or higher, but less than 0.10 percent. First-time offenders with a lower level BAC face a three-month license suspension. Drivers with a higher BAC face a seven-month suspension, up from the six months under the old law. Drivers who refuse to take the BAC test typically face two charges, one for driving while intoxicated and one for refusing to take the test. In addition to the seven-month suspension for refusing to take the BAC test, the new law calls for a three-month suspension on the charge of drunk driving for drivers who refuse to take the test. These sentences may be served concurrently.

In April 2004, the Legislature increased the license suspension for refusing to take the BAC test from six months to seven months. This amendment made penalties under the new law consistent with the penalties under the old law: Refusing to take the test carries the same penalty as having a high BAC reading.

Judge Carchman explains in the Notice to the Bar that, rather than suffer a seven-month suspension for refusing to take the test, a driver could agree to plead guilty to driving while intoxicated with a BAC of between 0.08 and 0.10, and accept a three-month suspension in exchange for a dismissal of the charge for refusing to take the test. Without the results of a blood test to prove exactly what the blood alcohol level was, the guilty plea for the lower BAC could be accepted and the driver’s license suspended for three months.

“It is clear that the Legislature intended to make the penalties for driving drunk in New Jersey more severe and to identify a broader range of drinking and driving as illegal. Some members of the legal community have expressed concern that the amended guidelines would result in more trials. We have no clear indication of that result. However, if more trials occur, we will handle them. The alternative is unacceptable,” he added.

The amended guidelines prohibit plea agreements that result in the dismissal of charges for refusing to take the blood alcohol test in exchange for pleading guilty to drunk driving. The amended guidelines also make it clear that attempts to plead guilty to the lower level offense, despite a BAC of 0.10 or higher, are strictly prohibited. The changes become effective July 1, 2005.

Download a copy of the Notice to the Bar

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