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For years, New Jersey drivers could rest assured that no points would be assessed for a lesser traffic charge that was merged into a more serious one. But from now on, a merged charge counts as a conviction for which points will be added to the violator’s driving record. The change in Motor Vehicle Commission policy began in May and will have a big impact on municipal court traffic cases, where mergers of offenses are common. Under the old system, a driver who pled guilty to tailgating and had a careless driving charge merged would receive five points for the first offense and none for the second. Under the new system, the driver would get an additional two points for careless driving. The difference can be costly. Drivers with six points on their record pay a surcharge of $150 a year, plus $25 for each additional point. Drivers receiving 12 points in a two-year period are subject to suspension of driving privileges. The change in policy came at the request of the Administrative Office of the Courts, which approached the MVC in January in the wake of an Appellate Division ruling last November. In State v. Price, A-2147-06, charges of speeding, careless driving, failure to observe a traffic signal, following too closely and failure to observe marked lanes were merged into a conviction of second-degree eluding. The court said points should be assessed for each charge. Price is one of several rulings that a merged charge should count as a guilty plea. In State v. Bauman, 340 N.J. Super. 553 (2001), the Appellate Division held that the six-month license suspension for a drunken-driving conviction survives the merger of that charge into one for aggravated assault. The Supreme Court upheld the Bauman doctrine in State v. Wade, 169 N.J. 302 (2001). The MVC said it was not receiving data from the AOC about the lesser charges, and the AOC agreed to change its computer system so the information will be transmitted. The merged charges will also show up on the abstracts of drivers’ records that judges see. The purpose of the change is to ensure that drivers’ records reflect their driving history. “It’s in the best interest of roadway safety that we have an accurate picture,” says MVC spokesman Michael Horan. Though the MVC is likely to take in more money from surcharge payments as a result of the change, that did not enter into the decision to change the procedure, he says. In May, the MVC sent a memo to municipal prosecutors announcing the change. The AOC did likewise for municipal judges and court administrators, says spokeswoman Tammy Kendig. Some defense lawyers were caught off guard by the change. “The problem is, the [MVC] is doing this without telling anyone. It’s absolutely within their authority, and it’s correct, but when there’s a well-known practice that’s changed, everybody should be notified,” says Jeffrey Gold, a defense lawyer who heads a Cherry Hill firm. Robert Pinizotto, president of the New Jersey Municipal Prosecutors Association, says the new policy will require a change in mindset for some. “Lawyers should understand the fact that penalties merge, not violations,” he says. Robert Ramsey, author of the “New Jersey Municipal Practice Manual,” says the episode lays bare the fact that municipal courts routinely merge charges under inappropriate circumstances. Courts should only merge charges after a trial has found the defendant guilty of both the greater and lesser offenses, says Ramsey, of Trenton’s Donini & Ramsey. Ramsey cites State v. Martin, 335 N.J. Super 447 (2000). In that case, the appeals court overturned a conviction in which a judge accepted a guilty plea to a charge of driving with a suspended license and then merged a charge of failure to have driver’s credentials in possession. The court in Martin said the merger of the lesser charge was improper because the municipal court judge elicited no factual basis for a guilty plea, as is required by R. 7:6- 2(a)(1). “It is inappropriate to order merger of one charged offense to which no plea of guilty has been entered with another in respect of which a guilty plea has been entered. Merger occurs, not of charges but rather of convictions,” the Martin court said.

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