Submitted by New Jersey DWI Lawyer, Jeffrey Hark.
This is a county prosecutor’s appeal of a trial court’s decision to overturn their denial of a defendant into their PTI program. Defendant was charged with the 4th° offense of driving a motor vehicle while suspended for a second or subsequent violation of DWI.
Recently the NJ legislature enacted this statute to protect the public from those drivers who continue to drive while suspended after their license was suspended due to a second or subsequent DWI. This defendant, while in the Superior Court, applied for participation in the county prosecutor’s PTI program. The prosecutor’s office objected and the trial court overruled the prosecutor’s objection finding the prosecutors office did clearly and convincingly abuse it’s discretion and the defendant should have been allowed into PTI.
On appeal this court reviewed the recent decision of State v. Rizzitello decided earlier in 2016. In that case the Appellate Division found there was no absolute presumption against admission of a defendant into PTI for this offense, however the underlying individual defendant’s facts had to support the PTI application and the numerous other factors needed to be considered. In this case the appellate panel reviewed the “public safety factor”, namely this defendant’s significant prior driving history, and found sufficient individual factors against allowing this defendant to PTI and supporting the prosecutor’s office’s initial denial. Given the defendant’s prior driving history which the prosecutors office relied upon, this appellate panel found there was no gross and patent abuse of discretion when it deny this defendant admission into their PTI program, and the trial court was mistaken to reverse. Specifically the appellate panel found the defendant’s multiple instances of a) failure to comply with the court ordered suspensions of his drivers privilege relevant, b) his numerous prior traffic violations of driving while suspended, c) “this defendant’s poor history of driving while intoxicated, d) his refusing breath test, e) driving while his license was suspended. That history was not included as the predicate offenses for the current charge “… The court observed this defendant did not produce any evidence of any emergency or other compelling need for him to drive on the occasion of this offense. Finally the appellate court recognized that the defendant gave the police a false name and date of birth to attempt to avoid responsibility for his illegal conduct.” This appellate panel found those factors clearly tipped the scales against the defendant’s PTI admission and validated the prosecutor’s discretion of preclude him from their PTI program.
The full case can be read here: State v Safarov decided December 27, 2016
Jeffrey S. Hark, Esq.