Newark Traffic Ticket Lawyer Blog

July 18, 2010

Those Arrested for DWI Have Right to Be Informed of Obligation to Submit to a Breath Test in the Language they Speak: Refusal Case Law

In State v Marquez, the NJ Supreme Court held that an individual arrested for DWI/DUI has the right to be informed of the consequences of refusing to consent (to submit) to an Alcotest (Breathalyzer) in the language that they speak. In this case, the defendant was arrested for DWI in New Jersey. It was clear that he did not speak English. When the Police brought him to the police station, the read to him, in English, what is commonly referred to as the Standard Statement. This eleven paragraph form informs the individual arrested for DWI what will happen should he/she refuse to blow into the machine. It was clear that Marquez did not understand, so the officers demonstrated what he was supposed to do (pantomime blowing into the Alcotest).

Even those who speak English have a tough time understanding this form. Most don’t realize that a first conviction for refusal means no less than a seven month loss of license.

Prior to this decision, courts examining this issue had held that it was not necessary for the Standard Form to be read in the suspect’s language before charging the individual with refusal. The reasoning behind this being that, under this State’s implied consent laws (NJSA 39:4-50.2) a person who applies for and receives a NJ driver’s license has, in essence, already agreed that he/she has an obligation to submit to a chemical test if arrested for DWI. The only requirement is that police read the standard form, in English, to the suspect. One could think of it like a contract you sign with the State when you get your license. Nonetheless, prior to being charged with refusal, the police must inform you of the consequences of doing so.

July 3, 2010

Lifting up Shirt does not Fall within Terry “Pat-down”

by Todd Palumbo

The NJ Supreme Court recently decided State v Privott. The holding is pretty interesting. Basically, the court held that when an officer has the right to conduct a “Terry” pat-down search for weapons, i.e. the officer has reason to suspect that the suspect may have weapons, the officer does not have the right to lift up the suspects shirt and circumvent the traditional pat-down requirement to recover evidence.

This does not mean that the officer can’t recover evidence that he suspects may be a weapon following a legal frisk. However,under “normal circumstance”, the law enforcement officer does not have the right to forgo the pat-down to determine whether the suspect may be armed and jump directly to a more obtrusive search. In this circumstance “the search exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned.”

For the full text of the decision please see State v Privott

June 29, 2010

Second Conviction for Simple Possession does not Mean Deportation for Legal Resident

by Todd Palumbo

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.

June 27, 2010

DWI with Children in the Car Could Mean up to Ten Years in Prison

by Todd Palumbo

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.

June 24, 2010

Ignition Interlock Required for New Jersey DWI Conviction When BAC over .15

by Todd Palumbo

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.

June 21, 2010

Possession of Heroine Charge Downgraded to Loitering Offense in Newark Municipal Court

by Todd Palumbo

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.

May 16, 2010

New Law, Driving While Suspended, Reduction in Penalties

by Todd Palumbo

A provision harsh provision of the Driving While Suspended law was recently repealed by the NJ legislature. Under the former NSJA 39:3-40(g), if a defendant’s license was suspended for failure to pay surcharges, the statute called for an additional $3000 fine to be paid to and collected by the Motor Vehicle Commission. This fine was in addition to all others imposed.

The penalty took the form of a judgment against the defendant and remained as such until completely paid in full by the defendant. If you have been subjected to this penalty since January 16 of 2010, you should contact a New Jersey Municipal Court appeal lawyer who can make a motion for reconsideration on your behalf to relieve you of this significant financial burden.

May 13, 2010

Successful Defense of Uninsured Motorist, No Insurance, Summons, Ticket, Charge

by Todd Palumbo

After a long and hard-fought battle, I finally achieved the success I had hoped for in the Elizabeth Municipal Court. My client was convicted of Driving without insurance. After he was convicted, he was then charged again in a different municipality with driving without insurance and driving while suspended because of no insurance.

Driving without insurance and driving while suspended are enhanceable offenses, meaning that each time you get caught, or if the underlying suspension is for certain reason, such as no insurance, the penalties become much more harsh. In this case, my client was facing mandatory jail, and YEARS of suspension (at least two but likely more).

I went back and filed for post conviction relief in the Elizabeth Municipal Court on the grounds that the insurance company never properly canceled my client’s insurance. After months of litigation, the conviction was vacated, and the case was given a trial date. At the time of trial, the state could not meet its burden, and the case was dismissed.

May 12, 2010

Newark Juvenile, Minor, Child, Lawyer

by Todd Palumbo

Has your child been charged with a criminal or traffic offense. Are you underage and been accused of a crime or traffic violation. I am a Newark NJ Juvenile attorney and represent minors/juveniles facing both motor vehicle and criminal charges.

Under most circumstance, when a juvenile is charged with a criminal complaint, the case will be heard in the Superior Court, Family/Chancery division. REMEMBER, just because the defendant is underage does not mean that they will sweep it under the rug. ACTUALLY, it is the complete opposite. The court proceedings will be almost identical to regular adult related criminal court matters. The penalties for the crimes are the same, including jail, fines, etc. In many instances, if the young offender is charged with a serious offense, the state will ask for jail time.

Additionally, it is almost always mandatory that the minor be represented by counsel, meaning that the court will requires it. Most Newark related juvenile crimes will be venued in the Essex County Superior Court in the Wilentz Justice Complex on 212 Washington St. in Newark. The defendant appears before a regular judge, and faces seasoned prosecutors.

May 11, 2010

Shoplifting Policy in Different New Jersey Municipal Courts

by Todd Palumbo

There is typically very little uniformity in the Various NJ municipal courts regarding plea offers and commonly charged traffic and criminal offenses. As a New Jersey Municipal Court lawyer, I have appeared in MANY different municipal courts. Therefore, I am usually aware of how my clients charges will be viewed by a particular municipal prosecutor and judge.

This is a very important aspect of this area of practice. For example, if the defendant is facing shoplifting charges, there are some municipalities that have a no plea bargain rule. This means that the court has made a policy decision to strictly enforce shoplifting laws and will not allow for an amended charge unless there are exceptional circumstances. This means that a defendant facing a shoplifting offense in one of these municipalities will likely have to go to trial and make the state prove its case BEYOND A REASONABLE DOUBT.

This issue becomes especially important if you are facing immigration consequences because of your shoplifting charge. Shoplifting is called a crime of moral turpitude, and can be used against you in a deportation proceeding.