Newark Traffic Ticket Lawyer Blog

The United States Supreme Court recently decided an important case for non-citizens, lawfully present in the United State, with multiple simple drug possession convictions. In CARACHURI-ROSENDO v. HOLDER, the Court shifted course, and held that a second conviction for simple possession is not necessarily an aggravated felony, and does not necessarily preclude immigration relief , i.e cancellation.

To best illustrate the essence of the holding, a hypothetical is helpful:

In 2003, John, who is in the U.S. legally, is convicted of a marijuana crime in the "state pretend" court. the maximum penalty he could face on the offense is 6 months in prison. Therefore, it is not an aggravated felony under federal law. the judge in state court sentences him to ten days in jail.

In 2005, John is again arrested for the same offense. In state pretend, a second offense in this instance could be enhanced, and he could be sentenced to 2 years in jail. However, state pretend prosecution does not prosecute on this basis and he pleads guilty to the 6 months version of this offense. He is sentenced to 20 days in jail.

Prior to this recent Supreme Court decision, John would have been deportable. However, the court held in CARACHURI-ROSENDO v. HOLDER, that second offense for a simple possession crime that would not ordinarily subject the defendant to a year or more of prison, does not become an aggravated felony for removal purposes, unless the state used the evidence of the prior conviction in the second case.

It is important to understand that a crime that is punishable by a year or more in prison is still considered an aggravated felony. But this new case law provides some relief to those non-citizens who have got involved in minor drug arrest where the possible punishment was less than a year, and the quantities were small.

Not all DWI offenses are alike. The facts and circumstances of any NJ driving while intoxicated offense will determine the possible penalties the defendant faces. For example, many are unaware that if you were involved in a motor vehicle accident while DWI, you can be charged with an indictable offense called assault by auto, and face up to 18 months in prison. This is in addition to the any other charges. All that is required in most circumstances is for the driver of the other vehicle to complain of any pain what so ever, and it is likely the police will charged you with this offense.

Even more serious is a circumstance where a defendant is driving while intoxicated with children in the car. In that case, the state can file 2nd degree child endangerment charges and the defendant will be facing up to ten years in state prison. I can tell you from experience that the state does not back off these charges easily, and an initial plea offer will include an extended state prison sentence recommendation. These charges may be filed even when no one is injured. The mere act of DWI with children in the car can trigger the complaint.

Other enhancement scenarios include school zone offenses and driving while on the suspended list while intoxicated. There are others, but these are more common.

Sometimes, a defendant will make the mistake of not closely examining the paperwork given to he/she by the authorities. Many times, I will speak with a potential client on the phone and they tell me that they were arrested for DWI. However, after a few questions and a review of the documents, I have to inform them that the situation is not so straight forward.

If you have been arrested for a DWI, it is wise to contact a lawyer immediately. Find someone who handles DWI cases on a regular and ongoing basis and pick their brain. I am always happy to spend some time on the phone. I know that hiring an attorney is a big decision. Giving people information and counsel is one of the main reasons I enjoy being a lawyer. Although what I may tell you can sting, at least you can go forward with some important information that will help you compare attorneys and their knowhow.

For any individual charged with DWI after January 15, 2010, take note...if you are facing a first conviction for DWI, and your BAC was .15 or above, or you are facing a refusal offense, or second or subsequent DWI charge, you will also be facing the mandatory imposition of an ignition interlock system on any car that is primarily operated by you. If the BAC is .15 or above, upon conviction, the interlock system will be ordered for not only the period of suspension, but also for up to a year following the reinstatement of your license.

The installation and monitoring process is expensive and further exacerbates the already oppressive DWI penalty structure. Additionally, whether a car is primarily operated by the defendant is somewhat of an elastic term and some judges have ordered that the ignition interlock be installed on "family"cars that the defendant has access to. This can produce some odd situations, like your 75 yr old mother who lives with you having this contraption installed on her car.

The MVC website has the new ignition interlock laws posted on their site. The recent changes to these requirements further motivates the individual charged with DWI to fight the charge to the fullest.

What some don't realize is that you can be convicted of DWI without a Breathalyzer/Alcotest reading. This is called an observation case. But if you were convicted just on observations, you would face a 3 month loss of license for a first offense, as opposed to a 7 month to 1 year loss for BAC .15 and the imposition of the interlock system. Long story short, try to suppress the readings, and see if you can disprove the states observations case.

I represented a defendant who was initially charged with possession of heroine. Heroine possession is a third degree indictable criminal offense. After extensive discussion with the Essex County Prosecutor's Office, the charge was remanded to the municipal court in Newark where my client now faced a drug paraphernalia complaint.

Having a charge of this magnitude remanded to the municipal court was already a victory, but this particular offense (drug paraphernalia), like most drug related convictions, carries the possibility of a six month loss of license, and the minimum mandatory statutory penalties that can lead to thousand of dollars in fines.The only way to avoid the loss of license is to convince the court that taking the defendant's license would create an undue hardship. You may be thinking, of course taking my license would create an undue hardship. But the proofs required to avoid the suspension are more stringent than one would imagine.

I avoided having to deal with this issue by negotiating an even more advantageous plea agreement. The state agreed to amend the paraphernalia charge to an offense called loitering with the intent to purchase cds. The difference between this offense and paraphernalia is that loitering is not on an offense under chapter 35. It is a disorderly persons offense under NJSA 2C:33-2.1. The biggest difference being there is no loss of license, also the fines and statutory penalties are substantially reduced.

My client was very happy with this result, and kept his license. It should be noted that this particular client had prior drug related convictions and was not conditionally discharge eligible.