State Legislature Pushing Ignition Interlock instead of License Suspension for DWI

The New Jersey House and Senate have supported a bill that would make the ignition interlock system mandatory for all DWI offenses. This would be instead of the currently mandatory license suspension. However, if the defendant does not own a vehicle, then his license would be suspended. You would not be able to drive any car that doesn’t have the interlock installed on it.

This HAS NOT been signed and is not law, but it soon may be. I assume that  MADD has convinced law makers that people will drive even if their license is suspended for DWI. The penalties for driving while suspended for DWI include mandatory jail time of up to ninety days and an additional year to two year loss of license. If an accident is involved or if there is a prior conviction for DWI on your record, you could be looking at an indictable conviction and many months in the county jail or state prison time. Apparently, the legislature feels that these penalties are not sufficient or alternatively and more likely, the law makers feel that this is a safer alternative to the current system since people can not operate the car unless they blow into the machine and no alcohol is detected. So, if people are going to drive anyway, we mind as well make it safer. I have not looked at the research numbers, so I’m not sure if there is data to support the conclusion that people drive regardless.

Currently, the ignition interlock is only mandatory for a first offense DWI if the BAC is .15 or above or the defendant is convicted of refusal to provide a breath sample. It is mandatory for second and third offenses no matter the BAC level. With the new law, the ignition interlock would be mandatory for the period of suspension and up to ten years after reinstatement, depending on the number of previous convictions an individual has on his record.  Right now, the typical period of ignition interlock for a first offense is the period of suspension and up to one year after. For a second offense, the period of suspension and for up to three years following. I don’t think there will be any changes to the time frames.

Even if the new law passes, the additional penalties will remain the same. The high fines, ridiculously high surcharges and insurance surcharges, possible incarceration, loss of employment (imagine telling your boss that you have to install the interlock on all the work trucks or company cars that you might drive). It also will appear on your driver abstract forever.

Regardless, this new law would likely give the DWI defendant an opportunity to keep driving. For most, this is the paramount consideration.




Teachers in New Jersey and Criminal Charges

I have represented many educators who were charged with criminal offenses such as theft and shoplifting, drug possession, assault, etc. Unfortunately, the ramifications of a conviction go beyond a criminal record.

Depending upon your position (teacher, teacher’s assistant, aid, etc.) the consequences are different in my experience. For example, a teacher with a contract will be sent a flagging notice from the state advising he/she that the record reflects an arrest or charge. The letter will also state obligations that the employee has during the pendency of the matter including keeping the board advised of the progress of the case ( I always make sure that I am the one who makes that communication, never my client). The outcome of the case will determine, under most circumstances, whether you keep your job. Not all offenses are disqualifying, but many are, especially drug related charges. Teachers at least get the opportunity to litigate the case before the board takes any final action, meaning if we can avoid a conviction or fashion a plea agreement that fits our goals, you will be in good shape.

The is not the story for many other schools employees. Substitute teacher, aids, administrators and other employees (coaches even) can be terminated immediately upon being charged. However, this may be reversible if we are able to win the case or reach a resolution that smartly fits within the regulations.

It often comes as a real shock to these individuals when they receive that initial notice in the mail . There could be a tremendous amount riding on the outcome of the case. Aside from the loss of employment, pensions, health insurance and other important benefits could be cancelled.

I recently represented a coach who was hired by the school district for that purpose only. He quickly was terminated when the record of his drug arrest (a joint) went into the system. However, there were verbal promises made to him that he could return to coaching should his charged be dismissed or if his offense was amended to something other than a NJSA 2C offense. This meant that we either would have to win at trial or have the case downgraded to an ordinance violation. Even a conditional discharge would not suffice. According to the rules promulgated by this state board, a conditional discharge would prohibit the rehiring of the school employee for the entirety of the probationary period (at least one year) and made any future employment offers discretionary ( this means its tough to get rehired unless you complete the CD and have the arrest expunged).

The case took about two months to work out, but it worked out well. Although plea bargaining is not allowed in drug cases, there were enough legal issues with the case that the prosecutor felt justified in offering an ordinance violation.

Each one of these cases is a little different and dependent upon, inter alia, the nature of the offense and your position at the school. If you are working in a school system and need help feel free to reach out to us.



Shoplifting Charge Dismissed in Somerset County Municipal Court

One of the biggest problems facing people charged with certain types of criminal offenses is the possibility of deportation. This is certainly the case with shoplifting offenses because it is considered a “crime of moral turpitude” under the immigration laws. Under most circumstances it will take two of these to land you in removal proceedings, but it depends on the status you are currently protected under. Green card or visa, illegal etc. all play into the consideration. And any granting of permanent residence or citizenship is discretionary under most circumstances.

In addition, certain professional licensing boards, including nursing and teaching, keep close tabs on their professionals, and will flag a licensee upon receipt of the notice that he or she has been charged with a crime. Depending upon the outcome of the case, a loss of license could result and this means termination from employment.

The person I was representing had both issues.

Thankfully there was a sufficient legal argument to leverage an alternate resolution. Under most circumstances, plea bargaining is not allowed by the law in shoplifting, but if you can establish a credible legal defense, some form of it may go on. That is what happened in this case. Through independent alternative dispute resolution and a willingness on behalf of the defendant to participate in mitigating activities, the prosecutor recommended a dismissal after a 60 day stay.




Domestic Violence Charge Dismissed

I represented a client this week in Essex County that was charged with Harassment. The plaintiff claimed that my client had harassed her by sending nasty Facebook messages to her family member, which were directed at the plaintiff. The problem for the plaintiff was that the messages were not sent to her, in fact there were no communication sent to her, only her family member . Nonetheless, the plaintiff, not the family member, filed the complaint. The plaintiff swore out a complaint stating that she had received the messages.

In addition, there was an authentication issue with the actual messages themselves. There was absolutely no proof that they actually came from my client or his computer/phone. No IP address. Just because a message states that it comes from someone means very little in this day and age. The instances of accounts being hacked is rampant and it is fairly easy for police to determine the origin of a internet communication.

The messages were also not in English. This created an issue of accurate interpretation for the Court and the evidence produced consisted of snapshots of a cell phone.

Given the totality of the problems with the case, I made a motion to dismiss for lack of probable cause. The judge did not grant my motion the first time I made it, but when we came back to Court the case was dismissed as the witnesses needed to prove the case were not willing to go forward with it. This, I am certain was in recognition of the problems they would face if it were tried.

You Can get Probation Even if you Plea to Three Flat State Prison Time

Today  I represented a client in Essex County who was coming to Court to be sentenced to 3 years in prison. D-day. We had worked for months to get a better offer, but his prior record was too much to overcome and the best offer we got was the three flat. Three flat means that your first parole eligibility date is in about 9 months. With a prior record like my client’s, he may have maxed out (three years).

The shame of the situation is that my client had really turned his life around. The incident date for the offense was actually a few years back and he had bench warranted while he was taking care of his terminally ill brother. Really heart breaking stuff. He had got married, had a kid, a good job, the whole thing. I tried to use all of this to get him a probation offer during negotiations, but no luck.

There was really no defense to the charges either. He gave a full confession and no issues with the circumstances under which it was given.

That left me with one final bullet. Argue for probation at sentencing. Even if you plead guilty to a sentence that includes jail time, nothing prevents you from trying to argue for something less at sentencing. The truth, it never hurts to ask. Most judges are not going to deviate from a negotiated plea agreement, but it never hurts to ask. How do you ask? by having a really good reason for why it should happen.

Everyone loves a good feeling heart warming story, and this guy had one. For fifteen minutes I told it in front of a court room full of people. When I got done, I didn’t even need the judge, the prosecutor turned to his partner at counsel table and they gave each other a nod. He turned to the judge and said that the state was willing to amend its offer to probation with time served.

Mom crying, wife hugging, defendant beaming court room drama. I can’t say this about everyone, but he deserved it.

First Offense Marijuana Possession in New Jersey

There has been an increasing move towards the decriminalization of marijuana in the U.S. However, in New Jersey, it is still criminal to possess even the smallest amounts of marijuana for personal use. NJSA 2C:35-10a4 is the statute that penalizes simple possession of marijuana under fifty grams. This is a disorderly persons offense. In New Jersey, misdemeanor offenses are called disorderly persons offenses and are punishable by up to 6 months in jail and up to a $1000 fine. Additionally, there were will be other fines and statutory fees assessed upon conviction including a $500 DEDR penalty.

If that is not enough, upon conviction the court will have to impose a mandatory six-month loss of license unless the defendant can show that imposition of that penalty would create an undue hardship.

O.K., lets talk reality. Usually, the police don’t find marijuana unless they search you, your home, or your car. This may be by consent, by warrant, or some exception to the warrant requirement. Under normal circumstances, I will file a motion to suppress evidence automatically with any case, just in case. In many instances, there is minimally a question as to whether the search was legit and will at the very least give the defendant leverage in pre-trial negotiations. Where this ultimately leads is determined on a case by case basis. Suppression hearing are typically as far as drug cases get because the evidence is either coming in or going out after that hearing. If the judge finds against you, then the evidence comes and there are very few trial issues left to litigate at that point. If the evidence gets kicked, then the case is typically over and you win.

Secondly, even if the police were searching legitimately, there may be other defenses to the charges such as chain of custody issues, testing problems with the lab tech that tested it and discovery violations with the prosecutor. All of these issues are a basis to file motions to dismiss.

Other defense could include “possession” (was it yours, belong to someone else, didn’t know it was there). These issues are typically present in multi-defendant cases.

Also, depending on your prior record, even if you are caught red-handed, you may qualify for the conditional discharge program. This is a first time drug offender program and usually included a year of probation, drug testing and fines in excess of $800 dollars. However, if you complete the program successfully, the court will dismiss your charges.

The conditional discharge program is a good option, but not ideal. You can only use it once and if you have a problem completing it, all the charges get reinstated and the case starts fresh. Also, if you use this option, you can never expunge a criminal conviction from your record in the future. I like the program, but try to avoid it if I can for my clients. However, in some cases, it’s the best option.

Marijuana possession less than fifty grams is one of the most common arrest that police make. I think it should be legal. I am a member of the NORML legal committee and have been vocal in support for the legalization of marijuana possession in small amounts for personal use. However, in New Jersey it is still a crime and it will be for the foreseeable future.

If you have any question, please feel free to ask.

Not Guilty Careless Driving Ticket

Not every careless driving ticket goes to trial. In fact, most don’t. But these cases can be of some consequence.

Careless driving is a two point violation. This isn’t the end of the world and may not create any issues for insurance even if you are convicted. But that is not always the case.

Maybe you have ten points or more on your license and are facing a sixth month suspension from the MVC if you are convicted. Maybe you have a CDL and are concerned about a suspension of your CDL. Maybe there was an accident and there is possible civil personal injury ramifications. Or maybe you are simply not guilty.

In this case, my client was charged with careless driving after he had driven off a poorly marked embankment while exiting a parking lot. After reviewing the scene of the incident and pictures of the signage, I simply felt that he wasn’t guilty.

The prosecutor offered the common plea bargain of unsafe driving which is a zero point downgrade but a $400 fine. My client had no points on his license. I suggested that we go to trial. We did and we won.

I know this isn’t Roe v Wade, but the little cases are an important part of the checks and balances. They remind the government actors that it’s not just another day at the office. And every deserved not guilty verdict reminds me that what I do is important.