State v. Hand
November 30, 2010 /
Yesterday in State v Hand, approved for publication, the App Div affirmed the dismissal on double jeopardy grounds of a DWI that was downgraded after a plea to the accompanying indictable reckless endangerment charge (risk of widespread injury). The factual basis at the county was based on this def’s 4-50 and driving on a playing field. The court affirmed the use of the “same evidence” test. The court indicted that had the factual basis not included the evidence of driving while intoxicated, the result in this case would not have been dismissal of the 4-50.
With more and more DWIs being sent to the county for 4th and 3rd degree Assault by Auto (which this case was not because there was no actual injury) and the new indictable 3-40 kicking in now, this issue will arise more often if county prosecutor’s are not careful with how the accompanying DWI is disposed. The common method is to require a plea to the DWI and merge the offense with the indictable for sentencing.