Is DWI a Felony in New Jersey?

DWI is not a Crime in New Jersey, But is Treated like One

Many people think that DWI is a crime in New Jersey. However, a violation of N.J.S.A. 39:4-50 is a violation of the traffic code. I should note parenthetically that New Jersey does not have felonies. We categorize our offenses as indictable offenses and disorderly persons offenses.

Regardless, the distinction between the criminal and traffic code when it comes to a conviction for DWI or DUI in New Jersey is tough to make. This is because the penalties in New Jersey for a first, second, third or subsequent DWI or analogous to those one would face who was convicted for a crime. Case law examining this issue has even called DWI a “quasi-criminal” offense, recognizing that the penalties are arguably more severe than those one would face in the overwhelming majority of criminal proceedings.

The difference is that a conviction for DWI does not appear on your criminal record, only your driver abstract. The distinction here is once again minimal in my opinion because a subsequent offense will expose you to enhanced penalties including jail time and longer loss of license. The enhanced penalties you face are once again worse than one could face as a repeat criminal offender in many instances.

Furthermore, a DWI on your driver’s abstract could have the same effect that a criminal conviction on your rap sheet would. Most employers now request an abstract and could use this as a reason not to hire someone.

In addition, some state licensing boards can use a conviction for DWI as a basis to revoke your license to perform your job.

DWI Charges Can’t be Erased, Removed, or Expunged from Record

Once again, in a criminal case, you could eventually make an expungement application down the road if you qualify. No such relief is afforded to the DWI defendant. In fact, you can never remove a DWI from your record. The only relief you get is this. If ten years has passed since the time of your last offense, you will receive the benefit of the ten-year step down law. In most instances, you can only use that once.

New Jersey DWI Lawyers are not all the Same

Take some time to research your DWI attorneys and you will quickly see that they are not all created equal. The qualification necessary for affective  DWI advocacy are different from an ordinary case.

Challenging Field Sobriety Tests

I am uniquely qualified in the area of standardized field sobriety tests. My certifications and training give me the ability to cross examine police officers in a way that (in my opinion ) many attorneys can’t.

The standardized field sobriety tests are scientific test. The walk and turn, the one leg stand, and the HGN were developed in a laboratory setting applying the same instructions and using the same criteria to assess performance over and over again. Accordingly, it is required that the police officer administering the tests stick to the same criteria.

I can safely say that I have never crossed examined an officer who stuck to the rules when it came to administering and scoring the tests. There are always problems with the administration of the tests. Knowing what those problems are is how I make my living. You would expect that every lawyer claiming to be a DWI attorney world also be aware of ALL the issues. This is not the case.

There are a lot of considerations involved in choosing your attorney. My point is that when you make that choice, be certain that the counsel you choose is properly qualified and has the experience to adequately represent you during a trial, because it’s not always about pleading out.

Especially with first offense Dwi charges where I can suppress the Alcotest, or with second and third offenses where the penalties are not tiered, going to trial happens more than one would think.

Edison Cop Charged with Attempted Murder after Allegedly Firebombing Superior’s Home

NJ Police Officer Charged with Attempted Murder and Arson

A veteran Edison Police officer,  Michael Dotro, was charged with multiple counts of attempted murder following an investigation by the Middlesex County Prosecutor’s Office. The allegations are that he firebombed the home of his superior while the family, including his children and 92 year-old mother, slept inside. All the occupants of the home safely evacuated.

Superior Court Judge Vincent LeBlon set bail $5 million dollars and Dotro is set to be arraigned in the coming days.

The preliminary reports allege that the officer, who had been on the force for ten years, had a history of disciplinary problems. However, there have been no reports that there were any specific issues with his superior, Mark Anderko.

Preliminary statements from the defendant’s defense attorney included a complete denial of any involvement.

Interestingly enough, the State PBA had offered a 20k reward for information leading to the arrest of the suspect. The organization is standing by its offer.

Investigator were obviously intrigued by the work-place dispute between Dotro and Anderko, a suspicion that one could assume was heightened when investigators became aware of the following: In 2008, Dotro was involved in litigation with a his then neighbor. Shortly after the resolution of that dispute (which included claims of assault from both men) the neighbors shed was set ablaze. No one was every charged in that case, but police did question the victim in connection with the current investigation. I hate to use this cliché, but where there is smoke….

Hearsay – New Jersey Evidence – What is it

The text-book definition of hearsay is as follows:  an out of court statement other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

This doesn’t mean just oral statements, it includes written ones too, unless it fits into one of the hearsay exceptions.

Fore example, Lou is on trial for murdering his wife. Todd is on the witness stand and says Tim, who is Lou’s best friend, said that Lou was really angry at his wife and wanted her dead. It just so happens that Lou’s wife Erica was found dead shortly after this conversation.   This is hearsay. It is an out of court statement made by someone other than Todd and is offered for its truth. Lou wanted his wife dead.

However, the statement, even though it is hearsay may still be admissible if it fits into one of the hearsay exceptions (there are lots of them) or if it is not being offered for its truth. which is a stretch in this example .

Hear are the Exceptions:

•  Former Testimony Exception
•  Dying Declaration
•  Statement against Interest
•  Admissions by party opponent
•  Public Records Exception
•  State of Mind — Declaration
•  Past Recollection Recorded (does not require unavailability of the declarant)
•  Prior Consistent Statements (w/in Rule)
•  Excited Utterances
•  Present Sense Impression
•  Business Records
•  Present Physical Condition

I think that I will start approaching the exceptions in separate blog entries as opposed to explaining them all now. It would be an unruly blog entry to do so.

However, if in the interim there are questions about what hearsay is and what are the exceptions, then please feel free to contact the office.

The rules of evidence are no picnic and difficult for even the most seasoned NJ criminal lawyer to understand. If you need any information regarding your hearsay questions, a little research and a phone call is a good place to start.

Alibi Witness – New Jersey Law – Criminal Procedure

An alibi witness is a defense to a criminal charge. Having an alibi means that you were not present in the location were the alleged offense took place. In New Jersey, unlike in some other jurisdictions, there is a requirement that the defendant furnish information about the alibi witness prior to trial The rule is follows:

• (a) Alibi. If a defendant intends to rely in any way on an alibi, within 10 days after a written demand by the prosecutor the defendant shall furnish a signed alibi, stating the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within 10 days after receipt of such alibi, the prosecutor shall, on written demand, furnish the defendant or defendant’s attorney with the names and addresses of the witnesses upon whom the State intends to rely to establish defendant’s presence at the scene of the alleged offense. The trial court may order such amendment or amplification as the interest of justice requires.
• (b) Failure to Furnish. If the information required in paragraph (a) is not furnished, the court may refuse to allow the party in default to present witnesses at trial as to defendant’s absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires.

As you can see, if the proper procedure is not followed, the defendant can be barred from using the alibi witness as a defense. However, an alibi defense is a little different then some other defense since the defendant is claiming complete innocence. Therefore, it is my opinion that even if proper procedure is not followed initially, the court would likely provide time to cure the error.

Nonetheless, you do not want to be in the position to have your innocence decided by procedural issue.

If you have an alibi defense to your criminal or traffic matter, it is advisable to contact an attorney who is familiar with the court rules and has assisted others who also used an alibi as a defense. This strategy of choosing a New Jersey criminal or traffic lawyer is obviously rational. No matter what the situation may be, you want to have an attorney who has experience handling the type of case you have.

Didn’t Show for Court and Now There is Warrant for My Arrest – New Jersey

Common problem and a frequent phone call that I receive. Short answer is the more serious the offense, the more likely the situation will be complicated to resolve. For example, you are charged with a disorderly persons offense such as shoplifting or simple assault. You miss the first appearance date for the municipal court and you get notification that there is a warrant for your arrest. In this instance, an attorney may be able to convince the Court to recall the bench warrant and get your case back on the calender without you having to turn yourself in, possibly spend the night in jail and post bail. If you have missed multiple court dates, then it becomes tougher for me to get warrants vacated without turning the defendant in. Remember though, sometimes a judge just wont budge and we may need to make arrangement with the police to turn you in and release you on the same day after we post bail. As opposed to superior court and indictable charges, the municipal court judge will usually attach a bail amount to a arrest/bench warrent

If you are charged with a more serious offense such as cocaine or heroin distribution in the Superior Court, and you miss a court date, the Superior Court judge may not allow your attorney to do a “warrant walk in” and  may insist that you turn yourself in. This means that you will likely spend at least a day in jail before bail is reinstated or the judge sees you to set new bail. Although, as stated, in some instances it is possible to do a walk in if I can clear it with the court first. The problem with Indictable offense and missed court dates is that judges with frequently forfeit the bail that was posted initially and won’t set new bail until they have you in custody. This is the case almost all the time with indictables and missed court dates. This means that you will have to wait in jail before bail gets set again unless a walk in is possible. It really depends on the court and the judge

Sometimes a warrant may issues when you fall behind on time payments. This can be remedied in some instances by simple calling the court and making the payments that your are behind on. If you can’t do this, it may be necessary to post bail, and ask the judge to put you on a new payment schedule or an attorney can sometimes get the court to put you on the calendar for a date without having to turn you in.

If you have a warrant for your arrest in New Jersey, remember that every situation is different and I have handled just about all of them at one time or another. Give me a call and I can give you some guidance.

Robbery Charge Dismissed

I recently represented a client charged with Robbery in Essex County. Sometimes, even when the facts are not in your favor, you can structure a defense to entail not only legal but equitable arguments as well. Everyone has a reason as to why they shouldn’t be convicted of a serious offense like robbery, or shouldn’t go to jail. But to convince a prosecutor who hears the same things everyday, and who sees the charges over and over again AND who starts out seeing each defendant as a category of person as opposed to an individual, takes a lot of skill.

In this particular case, my client was facing confinement up easy 6 years if convicted. Robbery is a NERA offense, which means you serve 85% percent of the sentence. The presumptive sentence on a second degree is 7 years.

I was able to use my experience and negotiation skills to get the robbery charge dismissed and my client plead guilty to a disorderly persons shoplifting offense, just a fine, with a year of probation.

He and his family were very happy.