Can a DWI be plea bargained in New Jersey?

What the old rule said

The Supreme Court adopted the Guidelines for Operation of Plea Agreements in the Municipal Courts in 1990. Guideline 4, the "limitation" guideline, as it read before September 2023, barred plea agreements in "drunken driving or certain drug offenses": DWI, possession of marijuana or hashish (2C:35-10a(4)), being under the influence of a controlled dangerous substance (2C:35-10b) and drug paraphernalia (2C:36-2). For years that meant a DWI charge generally ended in a trial, a guilty plea to the DWI itself, or a dismissal.

In its last version, Guideline 4 began: "No plea agreements whatsoever will be allowed in driving while under the influence of liquor or drugs offenses (N.J.S.A. 39:4-50)." It had a few narrow exceptions. A defendant with a BAC of 0.10% or higher could not plead to the lowest (0.08% to 0.10%) BAC tier. On a second or later DWI, the judge could dismiss a refusal charge from the same incident if the defendant pleaded guilty to the DWI and the prosecutor recommended it. A refusal tied to a first DWI could not be dismissed by plea, although a concurrent sentence was allowed. A school-zone or school-crossing DWI charge under the old 39:4-50(g) could be dismissed on a DWI guilty plea unless the case involved an accident with injury or school property in use.

What changed in 2023 and 2024

1. August 4, 2023, effective September 1, 2023: in its 2023 omnibus rule order, the Supreme Court amended Guideline 4 to delete the drug offenses (marijuana or hashish possession, being under the influence of a CDS, and drug paraphernalia) from the no-plea list. It also deleted the paragraph about dismissing extra Chapter 35 and 36 drug charges. After that, the ban covered only DWI under 39:4-50.
2. December 21, 2023: P.L.2023, c.191 was signed. Among other changes, it added this sentence to 39:4-50: "Notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement under this section is authorized under the appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes or offense under Title 2C."
3. February 19, 2024: the plea agreement provision took effect.
4. February 23, 2024: the Supreme Court noted the statute and Guideline 4 directly conflicted and, in the interest of comity, withdrew Guideline 4 effective immediately. The Court did not decide the separation-of-powers question.
5. April 2024: the Court adopted a conforming amendment to Guideline 1 (purpose of the guidelines).

The drug-DWI floor

The statute keeps a minimum for drug cases. If you are convicted of driving under the influence of a narcotic, hallucinogenic or habit-producing drug (or of letting someone in that condition drive your car), or of operating a commercial vehicle under the influence of a controlled substance under 39:3-10.13, you forfeit your license for at least six months, even when a plea agreement is reached. People arrested or convicted for drug DWI also cannot use the interlock day-for-day credit.

How a DWI plea discussion works, step by step

1. Discovery: your lawyer requests the police reports, video, Alcotest data and other evidence.
2. Review: problems with the stop, the arrest, the 20-minute observation or the breath test can be raised by motion.
3. Prosecutor's recommendation: a plea to another Title 39 violation or Title 2C offense is only possible if the municipal prosecutor recommends it.
4. Factual basis: you must admit facts in court that support the offense you plead to. The judge decides whether the factual basis is adequate.
5. Sentencing: the judge imposes the sentence for the offense you plead to, plus any mandatory terms that still apply.

What a plea agreement does not change

• It is not automatic. Prosecutors are not required to offer one.
• A refusal charge under 39:4-50.4a is a separate offense; read the refusal page.
• Defenses still matter. Many results turn on the evidence, not on negotiation. See Alcotest 9510.
• Prior DWI convictions still count for later cases under the step-down and prior-offense rules. See second and third DWI.