Refusal and DWI May Never Merge: State v. Eckert

In State v. Eckert, the New Jersey Appellate Division ruled that a DWI offense and a refusal offense may never merge. Prior to this, it had been possible, in some instances to merge the offenses. This means that the defendant pleads guilty to both, but sentenced on one of the offenses only. For example, in Eckert, the defendant was charged with refusal and DWI. The plea agreement called for a merger of the two offenses, and the defendant to be sentenced on the DWI charge only.  Given that there were no BAC readings in the case (he refused) the attorney for the defendant argued that the loss of license should only be three months since there was no per se violation (step down). The mandatory period of suspension upon conviction for a refusal  is 7 months. The municipal court judge suspended the defendant’s license for 7 months and the defendant appealed. The Appellate Division held that plea bargains which call for a merger of the DWI and refusal offenses violates the restriction on plea bargaining in DWI cases, and to do so subterfuges the purpose behind the restrictions.

It is important to note that the merger of DWI and refusal offenses was not a practice of all municipal courts. In most cases where the NJ DWI defendant was also charged with refusal, if found guilty of both offense, or entered a plea of guilty to both offenses, the court would sentence the defendant on both and impose penalties accordingly. This was and will continue to be the law. Nonetheless, prior to this decision, in some jurisdictions, creative DWI defense lawyers could fashion a plea that would significantly reduce the defendant’s exposure by merging the two offenses.

In retrospect, taking this particular case up to the Appellate Division was probably not the greatest idea. But to reiterate, this really was only practiced in some courts. The reality is that there is no substitute for experience and training when it comes time to present a DWI defendant’ s argument. As the loopholes continue to close, the need for lawyers who specialize in this area of the law grows.  If you are facing a DWI or refusal charge, or both, make sure you hire qualified counsel.


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