Articles Posted in Uncategorized

I recently represented a defendant charged with DWI in the Newark Municipal Court. It was a slightly unusual case that presented what is commonly known as an operation issue. In order for the State to prove that the accused was driving while intoxicated, the element of operation must be established. For example, with most DWI offenses, the defendant is pulled over while operating his/her car. Thus, the operation prong of the offense is clear. However, in some cases the lines are not so bright. My client had his car parked on the street. The car was not running and the keys were not in the ignition. While he was patronizing a local restaurant, he noticed the police ticketing his car. He ran out to stop them, and during the conversation they noticed the smell of alcohol on his breath and eventually arrested him for Driving While Intoxicated. Now, the State can prove operation if evidence is presented illustrating the defendant’s intent to operate. For example, a car pulled over on the shoulder of the parkway. The keys are in the ignition, the car is not running, the defendant is passed out in the front seat, and the police conduct an investigatory stop, eventually arresting the suspect for DWI. The question is how did he/she get there and were they intoxicated while operating. The Court is permitted to “connect the dots.”

However, in a factual setting similar to ours, there is a thousand and one explanations for how that car may have got there, and none of which include my client driving while intoxicated. Was it possible that he had driven that car while drunk? Yes..he did not reside in the area, it was late at night, he was parked directly in front of the restaurant But, once again, we have a simple probable cause/suppression issue. Unknowingly, the police sealed their own fate when they issued the parking ticket. But that alone did not seal the deal. The old adage “where there is smoke there is fire” certainly applies to DWI offenses. But this case can be compared to two boy scouts rubbing two sticks together, creating a little heat, but no fire. The key is a prepared and coherent argument that precisely addresses each suspect element. All that is required is to disprove one element of the State’s case for a not guilty verdict

The shelf life of a New Jersey municipal court case defends upon the type of charge (traffic or criminal) and whether the matter is likely to resolve via plea bargain or trial. One of the most important things a defendant can do is to determine the date of his/her first appearance or arraignment. The first date can usually be found on the traffic summon itself or on the face of the criminal complaint/warrant. It is important to check these documents carefully to locate the date. Failing to appear may result in the issuance of a bench warrant. Many times, a defendant neglects to thoroughly read the paperwork and misses the first court date. It is not an excuse that you did not realize the court date was on the ticket or complaint.

The first appearance in the municipal court is typically called an arraignment. On this occasion, the judge will inform the defendant of his rights and ask the defendant to enter a plea of guilty or not guilty. The defendant will be given an opportunity to apply for the public defendant if desired. If the defendant is pleading not guilty, then the case will be rescheduled to a later date. This is called an adjournment. If the defendant hired counsel prior to this first appearance, the lawyer will have submitted a letter of representation and a discovery demand,  and it may not be necessary for the defendant to appear on this occasion (check with your lawyer). Otherwise, the accused must appear. Notice of subsequent appearances is received by both the defendant and his/her attorney. It is important to verify your mailing address with the court for this reason.

The second court appearance will usually take place 30 to 45 days later. At this point, the case may have a trial marking or a conference setting. The defendant or the defendant’s attorney will have an opportunity to discuss the case with the prosecutor and see if a plea agreement can be reached prior to trial. If any motions were filed, they are typically done so prior to this appearance. Those motions may be heard on this occasion. If discovery has not been received , the court may reschedule the case and order discovery be provided in a time set by the court. If the case had been marked for trial and no plea agreement has been reached, and both parties are ready to proceed, then it will go forward. If not, the case may be rescheduled again. There are a number of different reasons why an adjournment request may be necessary. It depends on the particular case and the attendant facts. However, if a plea bargain occurs, this will mark the end of the case.

In Florida v Powell, the United States Supreme Court ruled that the Police need not stick to a script when providing a suspect with Miranda rights. In Powell, the police provided the defendant with his rights under the fifth and fourteenth amendments to the Constitution, but did not do so in the exact words proscribed in the Miranda holding. Nonetheless, the defendant was advised, and apparently adequately so.

The Court stated in its holding,  ” This advice is admirably informative, but we decline to declare its precise formulation.” To make this more clear, the Court was more concerned with the quality of the advisement as opposed to its exact structure. Although the Court acknowledged the ofttimes chaotic and confusing setting that an arrest and custodial environment may present, it discounted the defendant’s claim that minor variations in the presentation of Miranda warranted the suppression of his statement.

Accordingly, as long the police provide a coherent presentation of the defendant’s important rights –  the right to remain silent, that anything you say can be used against you,  the right to have a lawyer present , and if you cant’s afford one, to have one appointed by the Court – the standard will be met. The opinion stated that the real standard is  whether the warnings reasonably convey to a suspect his rights as required by Miranda.

I recently posted a fairly popular blog regarding red light camera tickets in Newark New Jersey. Given the research I have done and the representations made to me by the court in  Newark NJ municipal Court, I have concluded that the red light camera ticket would not result in the imposition of any points, but would still be considered a moving violation (which has important implications). Most notably, the language of the statute specifically and clearly states that there shall be no points assessed for a violation under this section. However, I am receiving some conflicting reports that some  MVC personnel are telling motorist that this is a 2 point ticket.  I HAVE NOT CONFIRMED THIS WITH MVC. TO REITERATE, I have not received any direct reports that a motorist received points for this offense.I am in the process of verifying. If points are being assessed, there are clearly grounds for appeal. It would not surprise me if MVC did not get the memo, or did not update the computer systems to differentiate between the camera red light ticket and the ordinary running a red light violation.

I will update this topic shortly, but the law as signed by the governor is crystal clear. No points are to be assessed.

In a case captioned State v Best, the NJ Supreme Court held that school administrator my search a student’s automobile if they have reasonable suspicion to believe that the vehicle contains contraband. The usual threshold (constitutional) for searches is probable cause. In addition, warrantless searches of an automobile require a showing of exigent circumstances. This is not the case for student’s vehicles on school property. The Court reasoned that the need to maintain the safety, order and discipline on school property outweighs the traditional expectations of privacy and the protections afforded to citizens as a result.

Reasonable suspicion is not a difficult burden to meet. For example, a principle who receives information from a student that a classmate appears to be “high”, may provide the principle with enough reasonable suspicion to search that (high) student’s car. Although, additional facts may be necessary to amount reasonable suspicion to search the car.

It will be interesting to see how the case law unfolds, as more and more of these reasonable suspicion automobile searches unfold. As a NJ criminal defense lawyer and juvenile attorney, it is likely that I will be challenging these searches when ever I get the chance, and try to establish some type of workable standard .

In another episode of “Cases you should not Appeal”, the Appellate Division, in State v. Rivera ruled that it is improper to truncate calculations to three decimal places when applying the Chun Tolerance Calculation Worksheet to determine of Alcotest reading are within accepted tolerances. In every Alcotest DWI trial and prosecution, the state must show that the readings from the two valid breath test were within tolerance.

Tolerance refers to an upper and lower limit that the DWI suspect’s Alcotest results must fall within. This is a mathematical equation set forth in State v Chun. After the calculation is performed, and it is determined that the readings are out of tolerance, than the readings are inadmissible. This happens from time to time. Usually, the police or testing trooper will perform the calculations on the spot to determined the validity,and to guard against future challenges. In many cases, the calculation performed will only be calculated to the third decimal. The Chun decision and Order states that it should be calculated to the fourth.

After performing hundreds of these calculations myself, It became apparant that the three decimal method was more beneficial to the defendant. Using three decimals instead of four yielded more out of tolerance readings,  and the occasional suppression of the Alcotest results.

If you have been issued a temporary restraining order in New Jersey, I am sure that you have many questions. I am  a NJ and Newark New Jersey criminal defense lawyer who defends those facing Final Restraining Order hearings (FRO), and if contacted early enough, can challenge the issuance of the temporary restraining order or TRO. I will address some of the more common questions that I am asked by clients inquiring about the restraining order procedure in NJ.

One of the initial questions I am asked is who decides whether a temporary restraining order is issued, and does the respondent have a right to be there for that determination? A judge or hearing officer typically makes the initial determination if a TRO should be granted to the plaintiff. Take note that restraining order proceedings are civil in nature, not criminal. The complaining party is called the plaintiff. I will talk more about this later in the article. Typically speaking, the party who is alleging the need for a restraining order will contact the police or family court directly. They will be interviewed by an officer of the court, possible a domestic violence advocate, or police officer. The accusations will be recorded and presented to a judge or hearing officer. The applicant will usually be present for the determination and tell the judge or hearing officer why it is they are seeking the order. However, the accused will almost never be present when the decision to grant a TRO is made. This may seem unfair, and to a certain extent it is. The legislature in the State has taken a better safe than sorry mentality, but the series of events that this determination triggers can be life altering.

In order for the TRO to issue,  the judge must find that the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.  This is a very elastic burden, and since the determination is made based upon the testimony of the applicant alone, TRO’s are not very difficult to obtain.

If you were arrested and charged with a DWI and Refusal, you may recall, just prior to the alleged refusal, the police officer or trooper reading from a sheet of paper. What he read still may not be clear to you, but after he read it you either declined to give breath samples or asked him some questions. If you asked some questions, he may have read a little more. If you still had questions or refused to provide breath samples, it is likely that you were issued a refusal summons. Maybe you tried to blow into the machine with no luck and received a refusal ticket for your effort.

That document that was read to you by the police officer is called “paragraph 36.” This is a standard statement prepared by the chief administrator of the motor vehicle commission. The DWI suspect must be read this statement prior to the administration of the Alcotest/Breathalyzer. The statement informs the suspect of his/her rights, and also of the consequences of refusing to provide a sample. Anything other than an unequivocal affirmative response will be construed as a refusal. In fact, the courts have held that it does not even matter if the defendant does not understand English. The rational is derived from the implied consent laws which basically say that a person who is driving in the state of New Jersey has given their implied consent to the providing of breath samples IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PERSON IS UNDER THE INFLUENCE OF ALCOHOL.  Does this mean that you can make your own probable cause determination while sitting at the station. NO. That is for your lawyer to argue later on. If it is determined at a later date IN COURT that there was not sufficient probable cause to request breath samples in the first place, the case will be dismissed, including the refusal. Probable cause is a legal term of art and is a determination based upon the TOTALITY OF THE CIRCUMSTANCES.

Many people ask me “Didn’t I have the right to a lawyer before they asked for the samples?” The short answer is no. But you do have the right to have an independent blood analysis performed, and you do have the right to a copy of the Alcohol Influence Report, and you do have the right to have the form read to you. Do you have the right to understand it? Apparently not. Basically, the only requirement placed upon the officer is to read paragraph 36 to the suspect. They can read it fast, they can read it slow. Most likely you will be so upset and scared that you will not understand it anyway.

In a recent Appellate Division decision the Court held that a trial delay of 344 days caused by the repeated unpreparedness of the municipal prosecutor and multiple failures to appear by the State Police violated the defendant’s constitutional right to a speedy trial, and ordered the charges dismissed.

In State v Tsetsekas, the Court laid out an analysis to be employed by NJ judges when deciding if defendant’s speedy trial motions should be granted. Most experienced DWI lawyers in New Jersey will include a demand for a speedy trial in their initial court filings. It is often the case that DWI prosecutions are delayed by the State, sometimes to the point of being unreasonable. Nonetheless, it is typically very difficult for the defendant to obtain a dismissal based on these grounds. Reading the case makes two things clear; 1) the standard for municipal prosecutors with regard to preparedness and timing has been significantly changed; and 2) in my opinion, in most courts, the delay will have to be egregious for the judge to consider dismissal , no different than before.

I could be wrong about my interpretation, but until a see more cases dismissed, the verdict is still out. I say this because of one particular fact. Mothers Against Drunk Driving (MADD) is one of the most powerful lobbying groups in the country. Although I zealously defend those charged with DWI, I can say in good conscious, that MADD has created some needed and worthy DWI legislation. The group also has  a courtroom presence and can quickly gather media attention to high profile DWI cases. Monitoring of this nature may cause some courts to be weary of granting dismissals of DWI offenses, even when presented with fairly obvious violations of constitutional rights, fearing that decisions of this nature will attract attention. This is not to say that courts are willing to violate the defendant’s  constitutional rights because of perceived pressure, but the court may  subconsciously make a ” better safe than sorry” calculation when deciding motions to dismiss based on speedy trial grounds. Nonetheless, the motion for a speedy trial will have more teeth than it did before, making this case a minor victory for DWI defense lawyers.

It is not uncommon in Essex County for criminal indictable charges to be remanded or downgraded to the municipal court for adjudication. Depending upon the nature of the offense, the facts alleged,victim involvement, etc., the screening assistant prosecutor may “send the case back down.”

In some matters, it is fairly easy decision for the prosecutor to make. Usually, however, the decision to remand will not be so cut and dry. It has been my experience that it is very beneficial to have early attorney involvement with any type of indictable offense, in order that your lawyer can start the negotiation process within days of the charge being issued. I am of the opinion that preemptive action not only gives the defendant a better chance at a downgrade, but also alerts the prosecutor that his/her adversary is taking an active role in the defense of the case. All of this is important, especially if it turns out the case will stay in the superior court.

In both Essex and Hudson Counties, there are usually preliminary court appearances scheduled within close proximity to the filing of the complaint. Central Judicial Processing, or CJP is a process whereby the dedfendant is “matriculated” into the system. If represented, counsel will have an opportunity within days of the event to pitch why the case is worthy of a downgrade. Once again, early involvement is key in my opinion.

Contact Information