New Jersey DWI Attorney John Menzel

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 defense attorney. Ethics panels that have found that plea bargaining happened imposed sanctions, including suspension of a lawyer’s license to practice law for three months.

We also have plea bargaining guidelines that prohibit DWI plea bargains 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 remote and that the interests of justice would not be served by prosecution. In other words, as a defense attorney, I have to persuade a prosecutor that there are weaknesses in the case. An interesting thing about prosecutors in municipal courts is that they are part-time. They have their own law practices outside of prosecution. They don’t get paid extra 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 driving privilege revocation, while most first-offense DWIs expose the defendant to a driving privilege revocation of maybe a few days. Long-term, a reckless driving charge is just another traffic ticket. Consequently, in most cases, 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 is a level of proof called reasonable suspicion. Reasonable suspicion is one of the lowest levels of proof under the law. Officers are well within their rights to charge someone with reckless driving even though the burden of proof at trial is beyond a reasonable doubt. Without a guilty plea, it is 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 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—e.g., a condition called gastroesophageal reflux (acid reflux or GERD) and respiratory conditions that affect air exchange in the lungs. So can dental features such as dentures, bridgework, braces, or Invisalign®, which 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. In New Jersey, the breath-alcohol level is a proxy for the blood-alcohol level. 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 will 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 pretrial 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, leading to exclusion of blood test results.

Keep in mind, experts are expensive; they can sometimes cost as much as the legal fee. So, in most cases, I don’t use experts. Often, I can get a breath test or blood test result excluded on procedural grounds such as discovery failure. We also have the right to confront witnesses, present competing evidence, and offer alternative theories, among other things. Lawyers specialize, just like doctors do; so, you want to find an attorney who concentrates his or her practice in DWI defense.

For more information on Plea Agreements in DWI Cases in New Jersey, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.

John Menzel, J.D.

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