Under normal circumstances, the police need only a few things to charge a person with refusal. Although this remains true there have been certain case law clarifications that may provide a window of opportunity for those currently facing refusal charges. I have made these arguments and won. Not every attorney is aware of them.

Regardless it is important to understand what is necessary for the police to proceed on a refusal charge.

First they need to establish that there was probable cause for the arrest. This means that there was a legitimate reason to stop the motor vehicle. It also means that there were, in the totality of the circumstances, enough indicators that you may have committed the offense of driving while intoxicated. Probable cause is not the same as beyond A reasonable doubt. It’s a much lesser burden. None the less, the police must show that it was reasonable for them to act in the way that they did. The report will contain many different statements about how you looked, smelled, talked, walked, etc.

In about 90 days, changes to New Jersey expungement laws may be just the thing that many have been waiting for. Specifically, the waiting time to erase an indictable (felony) offense off your record will decrease from 10 years to 5 years. Prior to this, one could apply to expunge an indictable offense after 5 years, but this was called and early pathway expungement and was discretionary on the part of the judge. In fact, these early pathway expungements were not granted unless the petitioner could show compelling reasons that it was in the public interest to do so.

Under the new law, after five years, an expungement would be granted as a matter of law if the petition was properly completed and served.

Additionally, the waiting time to expunge a disorderly persons offense will be three years instead of five.

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I have represented many clients charged with disorderly conduct after being arrested or issued a summons on the train platform. In many instances, these events involved either alcohol or an altercation with another individual waiting for a train or on a train. In some, but not all cases, the police issue complaints without ever seeing what happened.

In most cases, the Transit or Port Authority police issue these summons on what appears to be a ticket. This is deceiving because it give you the impression that it is no big deal, until you do a little research and find out that it will appear on your criminal record if you are convicted and show up on background checks for minimally five years until you file an expungement petition after the waiting period.

If you are like me then you will agree…this simply can’t happen without a fight. I have helped countless people from all walks if life avoid the penalties and avoid a criminal record.

Fighting Tough Cases – Marijuana Possession

No matter how bad you think your case is, the prosecution has to prove its case beyond a reasonable doubt, and its evidence cannot be the result of a violation of your constitutional rights.

In some cases that may seem hopeless to you, the prosecution will be unable to prove its case. Even if you admitted to the police that you had a bag of marijuana in the car, and they found it after you gave them permission to search the car, the state’s evidence may still have fatal flaws.

I represented a client who was charged with violations of NJSA 2C:29-1 and NJSA 2C:33-2. The incident was alleged to occur on the Newark Penn Station train platform while my client was waiting for a train. According to the police and a complaining witness, my client became disruptive and was arguing with other train passengers.

My client vehemently denied these allegation and stated that he simply had a disagreement with another individual waiting for the train regarding a comment that was made about his girlfriend. My client insisted that it did not become physical or even a loud verbal argument and ended has quickly as it started. However, the police got involved and escalated a the situation. At that point my client claimed that he was simply inquiring as to why it was necessary for the police to be involved and he was arrested shortly thereafter.

After being retained, I made the customary discovery demand for police reports and other items including any videos or audio. At the first conference date, the state was not able to provide the requested documents, that I argued will have apparent exculpatory value.

So you went out last night and had a few drinks. You get behind the wheel, and on your way home, you hear the sirens. The police are pulling you over. As DWI attorney in Newark and throughout New Jersey, I understand from dealing with hundreds of clients charged with a violation of NJSA 39:4-50 the sinking feeling that you may have experienced.

When someone is arrested for DWI there are several questions that a defense attorney will ask. Here is the opportunity to ask the first question. Was the stop justified? An officer cannot stop a vehicle unless he has a reasonable and articulable suspicion that a law has been violated. The term “reasonable and articulable suspicion” is a legal term which basically boils down to; was the stop warranted? Was your driving erratic, was there a complaint from a citizen, did you commit some type of motor vehicle infraction, was there an accident, or perhaps you were stopped at a checkpoint. If it was a checkpoint, there are stringent rules associated with this. The police would have had to follow a series of constitutional guidelines to establish that the checkpoint was legitimate. An experienced defense attorney will explore the reason for the stop and make sure that it is valid and justified. If the stop itself does not hold up to scrutiny, perhaps the remainder of the evidence against you would fall as well.

You pull over to the side of the road. The officer approaches your vehicle and asks you for your license, registration, and insurance. He claims to smell an odor of an alcoholic beverage emanating from your vehicle and asks you if you have had anything to drink tonight. Regardless of your response, the officer needs probable cause to believe that you are operating a vehicle under the influence of alcohol. He will observe your hand movements while you retrieve your documentation. He will also take note of the status of your eyes as well as your speech. In addition, he will ask you to step out of the vehicle to perform “Field Sobriety Tests”.

Clients frequently ask me about mistakes that the officer made when filling out the traffic ticket the received. Under some circumstances, those mistakes may become a defense to the underlying charge. However, those mistakes, especially if they are considered technical deficiencies, will not be fatal to the State’s case.

For example, if the defendant’s date of birth is incorrect or the name of the defendant is spelled incorrectly, those are most likely correctable errors and the court will allow the state to amend the ticket under most circumstances.

In other instances, the errors will be harder to correct. Specifically, errors that call into question the identity of the defendant, the time and date of the offense, or the nature of the violation, spell big problems for the prosecutor. For example, an incorrect car color, offense date, license plate, etc., may provide a defense lawyer with a strong defense to the underlying charge.

Here is a common scenario. You are pulled over for a traffic violation. The police start to ask some questions, and before you know it they are asking if you have any drugs or weapons in the car. They start to say things like “if you don’t give us permission to search we will make this hard on you” or “we will get the dogs”, etc.

Maybe you give them permission or maybe you don’t. Regardless, the search your car or you without a search warrant and eventually find something. Maybe it’s some drugs or maybe it’s a weapon, and you get arrested and charged with a serious criminal charge.

As you think back to the incident, you start to ask yourself, “Don’t police need a search warrant to search in my car, or look in my pocket?”

Understandably, sometimes people who have received traffic tickets in Newark overlook certain important information that appear on that traffic summons. Specifically, pay by dates or appearance dates (for court). This is not uncommon, especially when someone receives a ticket for something they perceive as being not too serious. However, the Court will issue a warrant for your arrest if you do not address the matter.

In some instances, a court appearance is required with a traffic summons. This is usually the case with traffic violations such as reckless driving, driving while suspended, high speed speeding tickets, no insurance. The more serious the violation, the more likely the appearances required box will be checked on your traffic summons.

Even in those instances that the box is not checked, that does not mean that you can ignore the ticket. Eventually, the court will issue a warrant if the matter is ignored.

I forgot to post an important case result for a matter that concluded recently. I represented a client charged with possession of marijuana and paraphernalia, and cds in a motor vehicle. The case was a series of battles that eventually led to winning the war.

Once again, being prepared and on top of the procedural aspects of a drug case paid dividends for my client. From the start, I seized on to a procedural problem the state was having producing certain discovery. I would not let it go and made several motions for a dismissal of the case all together. After several court appearances, the judge had no choice but to dismiss the drug possession charge and the paraphernalia offense. However, the court held the possession of cds in a motor vehicle (traffic offense) for adjudication. I vehemently fought to keep this from happening because the court essentially put my client in a worse position by dismissing only part of the case. There is not enough room here to explain exactly why. Just know that my client was facing the real possibility of a 2 year loss of license because the case could not longer be negotiated as a package.

On the day of trial, the state trooper arrived to court and I had the opportunity to speak with him. After my conversation, I realized that the State may have an overwhelming proof problem given what the officer’s potential testimony. The decision at that point was to put the prosecutor on notice and run the risk that she would cure the problem, or go straight to trial and run the risk of a non-negotiable 2 yr loss of license. I had dealing with this prosecutor on a number of occasions and decided that if I revealed the issue, there was a distinct possibility that the prosecutor would back off the case ( she was a straight shooter).