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 tohttp://www.judiciary.state.nj.us/notices/2005/n050615a.pdf.
Please call me to discuss all of your options.
