I have to say that my surprise with Court rulings gets less and less as I close in on twenty years of defense work in NJ.  Nonetheless, I had to gasp for a second when I read the release associated with a Mercer County Superior Court judge’s decision in State v. Rastogi.  In Rastogi, an individual was accused of drunk driving but there was apparently a significant issue concerning whether or not there was probable cause for the associated stop.  The accused lost his motion to invalidate the stop in Municipal Court and appealed the ruling.  While the appeal was pending, the Mercer County Prosecutor’s Office decided that the stop was too risky to continue to fight over and proposed a dismissal of the dwi and entry of a plea to reckless driving. The Law Division refused to accept the plea, finding that it violated the ruling prohibiting plea bargaining in DWI cases.

The prohibition in question applies to “plea bargaining” but certainly does not prohibit the outcome proposed in Rastogi in my view  If a prosecutor concludes that he or she cannot prove a dwi case because of a bona fide issue(s), there is nothing to prohibit dismissal of the dwi and acceptance of a plea to some other offense. It seems to me that this was exactly what was being proposed in Rastogi.