Is there a Hardship Exemption for Suspension of Driving Privileges?

The story

A municipal court defendant pleads guilty to two disorderly persons offenses involving drug paraphernalia, and failure to turn over a controlled dangerous substance. The tough part of the sentence is the mandatory imposition of a six-month suspension of  NJ driving privileges. A defendant will lose his job. Is there an exception to the rule?

The correct answer is yes.

N.J.S.A. 2C:35-16a provides for a hardship exception to the suspension of driving privileges. Here’s what the Appellate Division had to say about the application of the hardship exception in State v. Bendix, A-6508-05T3; opinion by Reisner, J.A.D.:

N.J.S.A. 2C:35-16a, which provides for a hardship exception to the suspension of driving privileges, may be applied retroactively, and the lack of public transportation and its potential impact on a defendant’s employment are proper considerations.”

Commentary:

I love the hardship exception, or any statute or rule that allows a judge to exercise his discretion in imposing an appropriate sentence to fit the crime. I am not a black and white kind of person. I am much more comfortable bouncing around in shades of gray.

The App. Div. made a wise decision in overturning the rulings below. Loss of your job, especially in this economy, should not be imposed for a minor disorderly persons offense. Ergo, long live the hardship exception. May it be applied wisely.

Is it malpractice for defense counsel in a municipal court matter not to raise the hardship exception when suspension of driving privileges are imposed?