Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
2053 Woodbridge Avenue - Edison, NJ 08817

Monday, July 20, 2009

Change in DWI Plea Agreements in Municipal Court

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 is drunk driving laws.

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 is 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 became effective July 1, 2005.

For further information contact Tamara Kendig, AOC
(609) 292-9580

However, recent caselaw also directs that if the new breath testing machine Alcotest 7110 is used, a refusal should not be charged. In State v. Foley, 370 NJ Super. 341 (Law Division 2003), Judge Orlando held "a large and unacceptable number of persons were charged with refusal that made an attempt to deliver a breath sample. Therefore, no person who delivers a breath sample of at least .5 liters on the Alcotest 7110 MK III may be charged with refusal pursuant to N.J.S.A. 39:4-50.4(a)." The new breath machine 7110 requires 1.5 liters of air, close to the big 2 liter Pepsi bottle. This is a large amount. Therefore, if the person attempts to give a breath sample, but does not or cannot deliver the full 1.5 liters, they cannot be charged with refusal, according to the State v. Foley case. If someone is charged with refusal by police, but the person attempted to provide a breath sample, the refusal must be dismissed by the prosecutor. This is required by State v. Foley.

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