If you have a criminal conviction on your record, you may be eligible to have that record sealed through a legal process called an expungement. An expungement is a petition that is filed with the court on behalf of the individual seeking to clean his record. The petition must be in the proper form and comply with the rules as promulgated by the expungement statute. The process is paperwork intensive and requires a fairly substantial attention to detail.

Additionally, not everyone with a conviction on his record is eligible for an expungement. N.J.S.A. 2C:52-1 sets forth the requirements. The statute is confusing and the various subsections of the expungement statute mingle to produce some unusual and illogical results.

On many occasions I have spoken to potential clients who have attempted to file expungement petitions on their own. They have contacted me after having the petition denied for a procedural defect. This, of course, was after hours and hours toiling to complete the complicated paperwork and prepare all the mailing to the various agencies to be notified. This happens frequently.

A recently represented a defendant charged with a serious third degree criminal offense called terroristic threats in violation of NJSA 2C:12-3. This is an indictable criminal offense (felony). The case started out at the Essex County Superior Court. After discussions with the AP, the case was remanded to the Newark Municipal Court and initially downgraded to a petty disorderly persons offense called harassment.

After a few months of discovery issues, a police report was finally produced. One of the big problems that the State had was that one of the main witnesses was an identified person that the state conceded could not be located. However, the conduct in question was mainly directed a the police officers involved, so there was certainly questions on both sides as to the outcome at trial.

After negotiations, the State agreed to recommend that my client plead guilty to a municipal ordinance violation. This is not a criminal offense and does not appear on a criminal record. It is typically assessed as a fine only. Given where the defendant started, he was very happy with the outcome.

One of the most serious traffic offenses a motorist can be issued a ticket for is tailgating. tailgating is a violation of NJSA 39:4-89. If convicted of a tailgating violation, the defendant will be assessed five (5) motor vehicle points. From time to time, the state police and local police departments will implement initiatives to enforce the tailgating laws.

The legislature has indicated how serious this offense is by imposing such stiff penalties upon conviction. To put this in perspective, a motorist who exceeds the speed limit by 30 mph and over is also subject to five points and a potential loss of license. This offense is in the same category in terms of seriousness. Making matters worse, case law has adopted a very generous analysis of what consitutes a tailgaiting offense. For example, in Pagano v. McClammy, 159 N.J. Super. 581 (1978), a defendant who drove 40 miles mph and followed another vehicle for a distance of approximately 15 to 20 feet was tailgating.

Nonetheless, when a defendant is charged with a serious speeding offense, the likelihood that her attorney will be able to negotiate a zero (0) point amendment is highly uncertain. But I have found that I can make arguments in connection with tailgating offenses that frequently result in very advantageous outcomes for my client.

This is a synopsis of fines, fees, loss of license, IDRC, ignition interlock, jail, surcharges, etc, for all levels of NJSA 39:4-50 conviction and most refusal offenses in New Jersey. Remember that the exact penalties you face will depend on the facts of your particular case and DWI history. Therefore, this table is only a guide:

First Offense DWI BAC .08% or more but less than .10% or operating under the influence of alcohol:

1)Fine $250-$400

In State v Dantonio, the New Jersey Supreme Court held that the evidence of radar speed meter readings should be received into evidence upon a showing that the radar was properly set up and tested by the police officer. Similarly, the Appellate Division held in State v Wojtkowiak that the K-55 radar device is completely reliable as a speed measuring device. Likewise, laser radar devices and Vascar have also been accepted by the courts as being scientifically reliable.

HOWEVER, the scientific reliability of the radar device is only one part of the proofs the state must offer during trial for the radar speed reading to be admitted into evidence. In addition to proving the reliability of the device, the state must prove that the device wasproperly calibrated and operated by a trained and experienced police operator.

For example, in connection with the K-55 radar instrument, the state should adduce evidence as to the specific training and extent of experience of the police officer operating the radar, the calibration of the machine prior to stopping the defendant through the use of tuning forks, which should also be independently calibrated, and the calibration of the speedometer in the patrol car if the K-55 is operated in moving mode.

Under NJSA 2C:35-10(b), an individual is guilty of a disorderly persons offense if he is under the influence of a controlled dangerous substance. One is not guilty of being under the influence of CDS if the substance has been lawfully prescribed by a physician and is being taken in accordance with that prescription.

It is important to note that in order to obtain a conviction under this section, the state need not prove that the defendant was under the influence of any specific drug. A conviction can be sustained by proving that the accused did manifest physical and psychological symptoms or reactions caused by the use of any controlled dangerous substance.

The interesting aspect of these cases is whether the testimony of the officer regarding his opinion about the condition of the defendant at the time of arrest is admissible as a lay witness opinion or as expert testimony. For example, in certain DWI prosecutions involving drug related intoxication, the state must offer expert testimony regarding the manifestations of drug induced intoxication.

Disorderly conduct is violation of NJSA 2C:33-2. A NJ disorderly conduct offense is a petty disorderly offense punishable by up to 30 days in jail and a fine of up to $500. It is an offense that will appear on your record if you are convicted. One can commit the offense in basically one of two ways.

First, the statute penalizes language (public) that is so offensive and course to the hearer that it would constitute a breach of the peace. Sound confusing? Well, although this section of the statute has not been repealed, I cannot recall ever losing a case where my client was charged with disorderly conduct under this section. This is because it is subject to constitutional freedom of speech defenses. In fact, there are court decisions which specifically address this issue. However, the offense is still frequently charged, typically when a citizen becomes involved in an oral argument with law enforcement. The bottom line is this type of offense is extremely defensible, and should be contested zealously by your lawyer.

Secondly, one can be arrested and charged with NJ disorderly conduct if there are allegations that the individual cause public annoyance, inconvenience, or alarm, or reckless risk thereof by fighting, threatening violent behavior, creating a dangerous or hazardous condition by doing some type of act that has no legitimate purpose. Typically if you are charged with disorderly conduct, you will likely be charged under this subsection. The state has the same type of issues with this type of disorderly conduct. There is a lot of gray area. The statute is vague, and a little unclear. Therefore, there are typically a multitude of defenses that an experience criminal defense lawyer can raise. I have a very high success rate defending those charged with this offense.

Sometimes convention goes out the window. I am currently representing a young client charged with shoplifting. Upon making our initial appearance, it became apparent that the alleged victim in the case, the store where he worked, was not interested in making any positive recommendations to the prosecutor as far as a disposition is concerned.

It may come as a surprise to some that the alleged victim frequently has an active role in the pre-trial negotiations. In many cases, the position of the victim is the most important consideration for the state in making an initial plea offer.

In this particular case, the prosecutor was not willing to downgrade the offense because of the store’s position.

One of the effects of the 9-11 attacks was the development of the Homeland Security Administration and many new laws which are aimed at protecting national security. Many of these laws are directed at the transportation industry. The Transportation Security Administration was created to oversee and enforce many of these laws. Truck drivers, holders of commercial drivers license (CDL) individuals with HAZMAT endorsements, etc., are now subject to additional requirements to obtain and keep a CDL or other important endorsements to that CDL.

One such requirement that can be imposed is TWIC, transportation worker identification credentials. This is typically required when a driver has access to “secure” areas. The application and renewal process is explained more fully at the TSA website.

The TSA employs a screening process to determine if a truck driver is eligible for his/her TWIC credential. I person can be denied TWIC for a number of reasons. One of the most common reason is criminal grounds. Under the TWIC laws, an individual can be denied TWIC if he has been convicted of a qualifying criminal offense. If the TSA determines that such an offense has been committed, the individual will be sent a Initial Determination of Threat Assessment or IDTA.

One of the most important aspects of a municipal court criminal or traffic matter is the discovery process. Rule 7:7-7provides the defendant with the absolute right to receive discovery consistent with the rule. Remember, the pertinent discovery must be requested in the proper manner proscribed by the rules.

In most cases, including DWI and drug charges, the state will rely upon police reports, lab certificates of analysis, chain of custody documents, alcotest readings, etc. to prove the case. A such, a defendant is entitled to information that the state plans to rely upon. Additionally, a defendant is entitled to exculpatory evidence. The rules of court and case law enumerate specific items that should be provided to a defendant in a prosecution. In addition, the defendant can always ask for and is entitled to relevant discovery.

The question is what happens when that discovery is requested but not provided. In State v Holup, the Superior Court of New Jersey examined this issue and proscribed the proper procedure for counsel to follow when such a situation arises.

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