Is It Standard Procedure To Negotiate Plea Agreements In DWI Cases?
In Asbury Park and in every other municipality in New Jersey, plea bargaining DWI cases is illegal. Plea bargaining is not prosecuted as a crime but instead is viewed as an ethical violation by either the prosecutor or the defense attorney. If an ethical body finds a plea bargain happened, that has resulted in the suspension of a lawyer’s license to practice law for three months. We also have plea bargaining guidelines that prohibit DWI plea bargain except in certain well-defined circumstances. Guideline 3 says that a prosecutor is not obligated to prosecute a case if he or she can represent to the court that the possibility of a conviction is still remote and that the interest of justice would not be served by prosecution.
In other words, I have to persuade a prosecutor that there are weaknesses in the case. One of the interesting things about prosecutors in municipal courts is they are part-time lawyers. They have their own law practices outside of prosecution. They don’t get paid extraneously to try cases. As a result, if they know they are going to get a disposition that makes them comfortable, they may be very willing to say they cannot get a breath test result into evidence or cannot prove a case beyond reasonable doubt. There would be an understanding that most defendants would take responsibility for their actions by pleading guilty to something else.
One of the most common companion charges that go with a DWI is something called reckless driving. Reckless driving is a fairly serious traffic offense with consequences paling in comparison to those of a DWI or a breath test refusal. But reckless driving does involve a revocation of driving privilege and many DWIs don’t except for maybe a few days. In the long-term, a reckless driving charge is just another traffic ticket. Consequently, a reckless driving conviction is better that a DWI conviction.
Keep in mind that to issue the charge, all an officer needs is to meet a reasonable level of proof called reasonable suspicion. Reasonable suspicion is one of the lowest levels of proof there is under the law. Officers are well within their rights to charge someone with reckless driving even though the burden of proof is beyond a reasonable doubt. However, it’s extremely unlikely that a person would get convicted of reckless driving at trial.
What Are Some Additional Legal Expenses that Someone Can Expect to Incur in a DWI Case in New Jersey?
The largest expense in defending a DWI case is the legal fee. You may be required to pay in a flat fee or an hourly rate. In terms of preparing a defense, you may want to hire an expert to testify. Because an expert can be expensive, I find that the only times I would consider recommending an expert is if there is a physiological condition that might have interfered with the breath test result.
For example, a condition called gastroesophageal reflux (acid reflux) and respiratory conditions that affect air exchange in the lungs may interfere. So can dental features such as dentures, bridgework, braces, or Invisalign®, which is interesting because it’s invisible and can trap alcohol. Keep in mind, these physiological conditions are potential sources for the contamination of a breath sample. A fundamental assumption of breath testing is that all vapor entering the breath testing device is coming from the lungs. If alcohol is coming from a source like the gut or mouth, that destroys this assumption and can help establish that the breath test is compromised and result in exclusion of the breath test.
We’ll also use experts in blood cases. Blood testing involves various techniques, the most common of which would be gas chromatography. Gas chromatography is a scientific technique with which many chemists and laboratory directors are familiar. An attorney will spend some time investigating the expert’s insights and engaging in a process of questioning known as discovery. This process can cause a case to drag out to some degree. Oftentimes prosecutors don’t understand why I may be asking a particular question and as a result, delays can build and build and build. I don’t necessarily want to hire experts immediately because discovery failures have the potential to sufficiently prolong the process.
Keep in mind, experts are expensive; they can sometimes be as much as the legal fee. But in most cases, I don’t use experts. Often, I can get a breath test or blood test result excluded on technical procedural grounds such as discovery failure. We also have the right to confront witnesses, present competing evidence, offer alternative theories, and more. Lawyers specialize, just like doctors do; so, you want to find an attorney who concentrates his or her practice in DWI defense.
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