Thursday, March 26, 2015
Plea bargaining barred in DWI cases in NJ
Plea bargaining barred in DWI cases in NJ
APPENDIX TO PART VII
GUIDELINES FOR OPERATION OF PLEA AGREEMENTS
IN THE MUNICIPAL COURTS OF NEW JERSEY
GUIDELINE 1. PURPOSE
The purpose of these Guidelines is to allow for flexibility in the definitions and
exclusions relating to the plea agreement process as that process evolves and certain
offenses come to demand lesser or greater scrutiny.
GUIDELINE 2. DEFINITIONS
For the purpose of these Guidelines, a plea agreement occurs in a Municipal Court matter
whenever the prosecutor and the defense agree as to the offense or offenses to which a
defendant will plead guilty on condition that any or all of the following occur:
(a) the prosecutor will recommend to the court that another offense or offenses be
(b) the prosecutor will recommend to the court that it accept a plea to a lesser or
other offense (whether included or not) than that originally charged,
(c) the prosecutor will recommend a sentence(s), not to exceed the maximum
permitted, to the court or remain silent at sentencing.
GUIDELINE 3. PROSECUTOR’S RESPONSIBILITIES
Nothing in these Guidelines should be construed to affect in any way the
prosecutor's discretion in any case to move unilaterally for an amendment to the original
charge or a dismissal of the charges pending against a defendant if the prosecutor
determines and personally represents on the record the reasons in support of the motion.
The prosecutor shall also appear in person to set forth any proposed plea agreement on the
record. However, with the approval of the municipal court judge, in lieu of appearing on
the record, the prosecutor may submit to the court a Request to Approve Plea Agreement,
on a form approved by the Administrative Director of the Courts, signed by the prosecutor
and by the defendant. Nothing in this Guideline shall be construed to limit the court's ability
to order the prosecutor to appear at any time during the proceedings.
GUIDELINE 4. LIMITATION.
No plea agreements whatsoever will be allowed in drunken driving or certain drug
offenses. Those offenses are:
A. Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and
B. Possession of marijuana or hashish (N.J.S.A. 2C:35-10a(4)), being under the
influence of a controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b), and
use, possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A. 2C:36-2).
No plea agreements will be allowed in which a defendant charged for a violation
of N.J.S.A. 39:4-50 with a blood alcohol concentration of 0.10% or higher seeks to plead
guilty and be sentenced under section a(1)(i) of that statute (blood alcohol concentration
of .08% or higher, but less than 0.10%).
If a defendant is charged with a second or subsequent offense of driving while
under the influence of liquor or drugs (N.J.S.A. 39:4-50) and refusal to provide a breath
sample (N.J.S.A. 39:4-50.2) arising out of the same factual transaction, and the defendant
pleads guilty to the N.J.S.A. 39:4-50 offense, the judge, on recommendation of the
prosecutor, may dismiss the refusal charge. A refusal charge in connection with a first
offense N.J.S.A. 39:4-50 charge shall not be dismissed by a plea agreement, although a
plea to a concurrent sentence for such charges is permissible.
Except in cases involving an accident or those that occur when school properties
are being utilized, if a defendant is charged with driving while under the influence of
liquor or drugs (N.J.S.A. 39:4-50(a)) and a school zone or school crossing violation under
N.J.S.A. 39:4-50(g), arising out of the same factual transaction, and the defendant pleads
guilty to the N.J.S.A. 39:4-50(a) offense, the judge, on the recommendation of the
prosecutor, may dismiss the N.J.S.A. 39:4-50(g) charge.
If a defendant is charged with more than one violation under Chapter 35 or 36 of
the Code of Criminal Justice arising from the same factual transaction and pleads guilty
to one charge or seeks a conditional discharge under N.J.S.A. 2C:36A-1, all remaining
Chapter 35 or 36 charges arising from the same factual transaction may be dismissed by
the judge on the recommendation of the prosecutor.
Nothing contained in these limitations shall prohibit the judge from considering a
plea agreement as to the collateral charges arising out of the same factual transaction
connected with any of the above enumerated offenses in Sections A and B of this
The judge may, for certain other offenses subject to minimum mandatory
penalties, refuse to accept a plea agreement unless the prosecuting attorney represents
that the possibility of conviction is so remote that the interests of justice requires the
acceptance of a plea to a lesser offense.
SUPREME COURT COMMENT (JUNE 29, 1990)
Over the years, various unique practices and procedures have evolved in connection with
the disposition of Municipal Court cases. Thus, it is the intent of these Guidelines to
define regulated plea agreements as including every common practice that has evolved as
a subterfuge for plea agreements. Therefore, for the purpose of these Guidelines, a plea
agreement shall include all of those traditional practices, utilized by prosecutors and
defense counsel, including "merger", "dismissal", "downgrade" or "amendment."
Generally, "mergers" involve the dismissal of lesser-included or related offenses when a
defendant pleads to the most serious offense. "Dismissals" involve motions to dismiss a
pending charge or plea agreement when the municipal prosecutor determines, for cause
(usually for insufficient evidence), that the charge should be dismissed. "Downgrades" or
"amendments" involve the taking of a plea to a lesser or included offense to that
Plea agreements are to be distinguished from the discretion of a prosecutor to charge or
unilaterally move to dismiss, amend or otherwise dispose of a matter. It is recognized that
it is not the municipal prosecutor's function merely to seek convictions in all cases. The
prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to
defendants, the State and the public to see that justice is done and truth is revealed in each
individual case. The goal should be to achieve individual justice in individual cases.
In discharging the diverse responsibilities of that office, a prosecutor must have some
latitude to exercise the prosecutorial discretion demanded of that position. It is well
established, for example, that a prosecutor should not prosecute when the evidence does
not support the State's charges. Further, the prosecutor should have the ability to amend
the charges to conform to the proofs.
Note: Guidelines and Comment adopted June 29, 1990, simultaneously with former Rule
7:4-8 ("Plea Agreements") to be effective immediately; as part of 1997 recodification of
Part VII rules, re-adopted without change as Appendix to Part VII and referenced by Rule
7:6-2 ("Pleas, Plea Agreements"), October 6, 1997 to be effective February 1, 1998;
Guideline 4 amended July 5, 2000 to be effective September 5, 2000; Guidelines 3 and 4
amended July 28, 2004 to be effective September 1, 2004; Guideline 4 amended June 7,
2005 to be effective July 1, 2005; Guideline 4 amended June 15, 2007 to be effective
September 1, 2007; Guideline 3 amended July 16, 2009 to be effective September 1, 2009.