Prosecutor Appeals New Jersey Court’s Approval of DWLS Defendant’s Request for Pretrial Intervention

Defendants in New Jersey criminal cases may be eligible to participate in a Pretrial Intervention program (PTI), which allows them an opportunity to avoid prosecution by focusing on rehabilitation. New Jersey law classifies driving while intoxicated (DWI) as a motor vehicle offense, rather than a criminal offense, although driving while one’s license is suspended (DWLS) due to DWI can lead to a criminal charge in certain circumstances. The New Jersey Appellate Division recently heard an appeal filed by a prosecutor’s office in a criminal DWLS case, State v. Rizzitello. The prosecutor alleged that the trial court wrongfully admitted the defendant into PTI over the prosecutor’s objection. Citing a 2015 New Jersey Supreme Court decision, State v. Roseman, which established guidelines for reviewing a prosecutor’s rejection of a PTI application, the Appellate Division reversed the lower court.

The general standards for PTI programs are established by the New Jersey Code of Criminal Procedure and Rule 3:28 of the New Jersey Rules of Court. Rule 3:28 includes a list of guidelines setting forth the purposes of the program, the factors prosecutors should consider in deciding whether to admit an applicant, and various administrative procedures. PTI programs, according to the guidelines, should be available when rehabilitation could “reasonably be expected to deter future criminal behavior.” Guideline 3(i) provides examples of offenses that are likely to render a defendant ineligible for PTI. Defendants must apply for PTI within 28 days of their indictment, and prosecutors must make a decision within 25 days of receiving an application.

The New Jersey Supreme Court held in Roseman that a trial or appellate court may overrule a prosecutor’s rejection of a defendant’s PTI application if it finds that the rejection was “a patent and gross abuse of discretion” by the prosecutor. The court also noted, based in part on Guideline 3(i), that a presumption against PTI exists for “crimes that are, by their very nature, serious or heinous.” A defendant must show “something extraordinary or unusual” about their background in order to overcome this presumption. The Roseman court cited an earlier decision, 2008’s State v. Watkins, which gave examples of “serious or heinous” crimes, including violent crimes, breaches of the public trust, and “non-drug addicted individuals who sell Schedule I and II narcotics for profit.”

The defendant in Rizzitello was charged with criminal DWLS for allegedly driving during a license suspension for a third DWI conviction. The Ocean County Prosecutor’s Office denied his PTI application, and the defendant appealed to the trial court. The prosecutor argued that the criminal DWLS charge should carry a presumption against PTI under Guideline 3(i). The trial court rejected this argument and admitted the defendant into PTI.

The prosecutor appealed the trial court’s decision to the Appellate Division, which reversed the lower court’s ruling. The court ruled that the prosecutor’s office had not abused its discretion in denying the defendant’s PTI application. At the same time, however, the court disagreed with the prosecutor’s Guideline 3(i) argument, finding that criminal DWLS does not meet the “serious or heinous” standard set by Watkins and Roseman.

Evan Levow is a knowledgeable and skilled DWI attorney with more than 20 years of experience who has dedicated 100% of his law practice to DWI defense. To schedule a free and confidential consultation with a member of our team, contact us today online or at (877) 593-1717.

More Blog Posts:

New Jersey Appellate Division Reviews Availability of Pretrial Intervention in Criminal Cases Related to DWI, New Jersey DWI Attorney Blog, April 13, 2016

Federal Agency Calls for Further Lowering of the Legal BAC Limit in DWI Cases, New Jersey DWI Attorney Blog, December 29, 2015

New Jersey Supreme Court Issues Important Ruling on Pretrial Intervention, Which Is Still Not Available in DWI Cases, New Jersey DWI Attorney Blog, March 1, 2015

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