With all the TV courtroom dramas that have come and gone, we certainly wouldn’t fault anyone for thinking that there might be a chance to negotiate a plea bargain on a drunken driving offense. And while a skilled criminal attorney can make the difference between a heavy sentence and a relatively light one, when it comes to DWI and drug DUI offenses, “copping a plea” is not in the cards.
Unless one is in the legal profession or very familiar with our state’s court system, most people rarely have the legal background to know what is or isn’t possible when it comes to defending against drunk driving charges. Although the general public may not be aware of all the ins and outs of New Jersey law, it is a fair bet that many have heard of the concept of plea bargaining.
In general, the term “plea bargaining” refers to a negotiated dismissal or downgrade of a charge or charges against an individual defendant. While relatively common in criminal trials, plea bargaining is strictly unavailable in cases concerning drunken driving. In fact, based on our state’s DWI laws, plea bargaining is actually against the law where intoxicated driving is concerned.
From a legal standpoint, there must be a bona fide proof issue (that is, a doubt as to whether the prosecutor in a case can actually establish a drunken driving violation in the first place) in order for a downgrade or dismissal would be permitted by a municipal court judge. This is an example of where the skills of an experienced New Jersey DWI defense attorney could help an accused drunk driver fight specific charges against him or her.
The ability to identify and then create a genuine issue for the court to consider is one of the functions of a DWI-DUI lawyer like those on the legal team at the law offices of Jonathan F. Marshall. In addition to having a number of Alcotest-certified attorneys on my team, we also boast four former municipal prosecutors and three lawyers who are certified in the administration of Standardized Field Sobriety Testing. (An aside here, there are maybe a dozen or so lawyers in the state of New Jersey who have this latter certification.)
Back to the question of plea bargaining on a DWI charge, while there is a legal prohibition against plea bargaining, given the right circumstances a prosecutor may exercise what we in the legal profession refer to as “prosecutorial discretion” and actually downgrade or even dismiss a DWI charge. What this means is that if there is a legal basis to do so — where there exists a real evidentiary, proof or legal issue concerning a prosecutor’s ability to prove a DWI — a dismissal or downgrade of the offense may occur and would not be considered a plea bargain.
One additional thought when it comes to DWI-related charges and the issue of plea bargaining, although there is an outright ban on negotiating a plea bargain for the specific drunken driving offense, any collateral or companion offense, such as speeding, reckless driving, failure to signal, etc., are usually not subject to the ban. We say usually, because in situations involving a first-time breath test refusal or school zone DWI offense, these are still subject to the aforementioned ban.