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FREE NJ DWI EVALUATION
Change in DWI Plea Agreements in Municipal
Court
1. REFUSAL CHARGES
On July 1, 2005, the New Jersey Supreme Court recently
changed the rules regarding pleas to DWI's and Refusal charges.
The new rules under "Guideline 4" no longer permit the
dismissal by agreement of the State of a refusal to provide a
breath sample for first offenders. The Guideline does permit
a plea agreement to sentence a refusal concurrently with a charge for
driving while intoxicated (DWI).
This means that if you are
charged with Refusal and DWI, unless you fight the charges against you,
will have to plead guilty to both Refusal and DWI. Your
suspension for the DWI can be merged into the suspension on the refusal
charge. Refusal carries a 7 to 12 month suspension on a first
offense, and DWI, when charged with a Refusal, carries a 3 month
suspension. If the suspensions are run concurrently, or at the
same time, then a likely sentence would be 7 months total on both
charges. However, you will have both convictions on your driving
record.
On second or greater offenses, the State may, in
its discretion, dismiss the Refusal charge, when a defendant
pleads guilty to the DWI.
To see the full text of the changes under
Guideline 4, please go to
http://www.judiciary.state.nj.us/notices/2005/n050615a.pdf.
If you
have a DWI and a Refusal charge, there are potential defenses to both,
depending on your situation, that you should explore before
deciding how to proceed in your case.
Please call me to
discuss your options.
2. PROHIBITION OF
AMENDING BREATH TEST READING FROM ABOVE 0.10% TO UNDER 0.10%
The amendment to Guideline 4 also clarified
that plea agreements in which a defendant charged with DWI with a blood
alcohol concentration (BAC) of 0.10% or higher seeks to plead guilty
and be sentenced as if the BAC reading had been 0.08% or higher, but
less than 0.10%, are prohibited.
Suspensions for first
offenders with a BAC reading of 0.10% or greater, range from 7 to 12
months loss of license, as long as the offense did not occur in a
school zone. A suspension for a BAC reading of 0.08% but less
than 0.10% is 3 months. If a first offense occurs in a
school zone, the suspension is 12 to 24 months regardless of the BAC
reading.
However, if you can demonstrate why the 0.10% or
greater reading is incorrect or faulty, the prosecutor still has
discretion to dismiss the reading. You can then be sentenced as a
"Tier 1" offender to a 3 month license suspension.
If you
have legitimate reasons why the breath test readings should be
disregarded or thrown out, and if the Prosecutor does not agree, then
you may want to go to trial in your case to have the Court determine
whether the readings are properly admissible against you.
If
you can then demonstrate that the State's "observation" case
against you does not show that you were under the influence of alcohol
or drugs, then you can win your case.
Again, to see the full
text of the changes under Guideline 4, please go to
http://www.judiciary.state.nj.us/notices/2005/n050615a.pdf.
Please
call me to discuss all of your options.
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