Last December, the Legislature voted unanimously to reinstate plea bargaining in cases involving driving while under the influence of alcohol or drugs (“DUI”) in municipal court that involved a charge of refusing to take a breathalyzer test. The bill (S-3011) was quickly signed into law by Gov. Phil Murphy, thus setting the stage for a potential constitutional conflict over the Supreme Court’s 1950 decision in Winberry v. Salisbury, holding that the State Constitution reserved sole power to the court to make rules governing practice, administration and procedure throughout the court system.

In 1974, the Supreme Court had banned plea bargaining in all cases in municipal courts—not merely driving while intoxicated—but had formally reinstated the practice in 1990 when it promulgated “Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey” as an appendix to the New Jersey Rules of Court. Guideline 4 of those guidelines had then permitted prosecutors to dismiss a charge of refusing to take a breathalyzer test under certain conditions. However, even that permission was eventually rescinded by a Supreme Court amendment to Guideline 4 in 2005.