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Lawmoe, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 2415
Experience:  More than 19 years of experience as a Criminal Defense Lawyer
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I was charged with a DWI in Jan 08 and went to court in sep

Resolved Question:

I was charged with a DWI in Jan 08 and went to court in sep 08 the DWI charge was dismissed however I pled guilty to a drive whilst suspended charge. Almost 1 year later I viewed my abstract and consulted with the DMV and they agree that at the time I was issued the ticket for drive whilst suspended my licence was infact not suspended. I would like to go back to the court in order to vacate the guilty plea however I am worried that the court may try to re-open the dwi that was dismissed. Is there a statute of limitations? how can accertain as to whether the charge was dismissed with or without prejudice....
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Lawmoe replied 7 years ago.

If you successfully vacate the plea, they may reinstate any charges dismissed. Essentially, you move back to square one and could face trial on any charges filed. The statute of limitations does not apply because it is a continuation of the previous action and that action was charge out within the statutory period.


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Customer: replied 7 years ago.
so you are saying that the vacating the drive whilst suspended charge will re-open the previously dismissed dwi and refusal charges that were dismissed?
Expert:  Lawmoe replied 7 years ago.

That is correct.. Essentially, the whole case is vacated and starts fresh.


Customer: replied 7 years ago.
One last thing, the prosecutor clearly stated and this will be on court transcipts " that there is no new evidence to support a re-issuence of the DWI and refusal charges" Can they simply disreguard these statements and prosecute me anyway. Also my plea to the drive whilst suspended was not a part of any plea agreement.
Expert:  Lawmoe replied 7 years ago.

I am not sure that I understand.


If you received the DWI and driving while suspended charges at the same time, they are intertwined. If you agreed to enter a plea to a Driving while suspended and the DWI was dismissed, then vacating the plea brings back any charges that were filed as if the case had never been resolved.


If that occurs, no new evidence is necessary. They may use any evidence they had when the original charges were filed.




Expert:  Lawmoe replied 7 years ago.

New Jersey Statutes, Sec. 2C:1-6. sets the statute of limitations at 5 years.


Customer: replied 7 years ago.
Thats the whole thing, the file states clearly that the DWI and Refusal were not a part of a plea deal and the court admitted as much. The Prosecutor told one Judge on two occassions and another on one that " in the interest of Justice the ticket should be dissmissed and my fines refunded" she was actually arguing the case to the judges on my behalf yet they refused to comply with her reccomendations on all three occassions. Sorry about the continued replys but this seems crazy to me.
Expert:  Lawmoe replied 7 years ago.

Under normal circumstances the plea and the dismissal would be tied together. That protects you from being recharged and it is a deal the prosecutor makes for the plea.


Even so, if that did not occur, so long as you had not impaneled a jury or commenced a trial, a dismissal on the motion of the prosecutor is a dismissal without prejudice. In that case, the statute of limitations would apply.A dismissal with prejudice only occurs if there is a dismissal by the court on the merits (such as a challenge to probable cause) or if the dismissal occurs after there is a substantial step in commencing the trial. No new evidence would be required and they could recharge using the same evidence.


Customer: replied 7 years ago.

The dismissal for the refusal was state vs duffy, the dismissal on the dwi was lalck of evidence based on the observations of the officer when he simply stated " Mr........ failed the field sobriety tests". There was no description of what tests were taken when or vague that I could have won on my own and im not a lawyer.


I will pay extra for your response

Expert:  Lawmoe replied 7 years ago.

The question is did the Judge dismiss it or did the prosecutor?


If it was the prosecutor, he may recharge it. Of course, if the evidence was weak then, it remains weak now.


Lawmoe and other Criminal Law Specialists are ready to help you
Customer: replied 7 years ago.

it is the same prosecutor that was arguing on my behalf... it is highly unlikley that she would argue for me then re-charge me.... can the judge order that I am re-charged