Refusal and DWI May Never Merge: State v. Eckert

In State v. Eckert, the New Jersey Appellate Division ruled that a DWI offense and a refusal offense may never merge. Prior to this, it had been possible, in some instances to merge the offenses. This means that the defendant pleads guilty to both, but sentenced on one of the offenses only. For example, in Eckert, the defendant was charged with refusal and DWI. The plea agreement called for a merger of the two offenses, and the defendant to be sentenced on the DWI charge only.  Given that there were no BAC readings in the case (he refused) the attorney for the defendant argued that the loss of license should only be three months since there was no per se violation (step down). The mandatory period of suspension upon conviction for a refusal  is 7 months. The municipal court judge suspended the defendant’s license for 7 months and the defendant appealed. The Appellate Division held that plea bargains which call for a merger of the DWI and refusal offenses violates the restriction on plea bargaining in DWI cases, and to do so subterfuges the purpose behind the restrictions.

It is important to note that the merger of DWI and refusal offenses was not a practice of all municipal courts. In most cases where the NJ DWI defendant was also charged with refusal, if found guilty of both offense, or entered a plea of guilty to both offenses, the court would sentence the defendant on both and impose penalties accordingly. This was and will continue to be the law. Nonetheless, prior to this decision, in some jurisdictions, creative DWI defense lawyers could fashion a plea that would significantly reduce the defendant’s exposure by merging the two offenses.

In retrospect, taking this particular case up to the Appellate Division was probably not the greatest idea. But to reiterate, this really was only practiced in some courts. The reality is that there is no substitute for experience and training when it comes time to present a DWI defendant’ s argument. As the loopholes continue to close, the need for lawyers who specialize in this area of the law grows.  If you are facing a DWI or refusal charge, or both, make sure you hire qualified counsel.

Civil Rights Violation by Police in East Orange Leads to 300k Verdict

An East Orange woman, who alleged the East Orange Police Department had violated her constitutional and civil rights in 2001,  was awarded $300,000 by an Essex County jury last Monday.

Esmay Parchment was showering in her home on a Sunday morning in February of 2001 when she heard intense banging at her front door. The elderly woman, dressed in a towel only, answered the door. The police entered the home, arrested her, and proceeded to kick and slap the naked women while she lay in handcuffs on the floor.

The Essex County Jury found that the East Orange Police officers had used excessive force and falsely arrested Ms. Parchment. The attorneys for the officers said that they plan to appeal the decision.

The lawyers for Ms. Parchment said that they were pleased with the verdict and felt that it sent a clear message to law enforcement concerning the constitutional and civil rights of citizens.

The legal battle lasted nearly nine years, and victory was far from a certainty at many points, but it appears that justice was done. Although the facts of the case are not readily available, I would assume that the East Orange Police were at the home to serve a warrant of some sort. The warrant was probably not for Ms. Parchment. Possibly a family member. It is possible that she voiced her displeasure with the manner in which the police chose to handle the situation, and this led to a confrontation. Nonetheless, the police need to use common sense and it is evident that they probably did not in this situation.

DWI defense and Twenty Minute Observation Requirement

New Jersey law requires that a defendant arrested for driving while intoxicated must be observed for a continues, uninterrupted period of at least 20 minutes prior to the administration of the Alcotest or breathalyzer as it is better known. This observation period ensures that the DWI suspect does not regurgitate, burp, place any foreign objects in the oral cavity, etc. It is the State’s burden to show that this requirement has been met. see State v Chun.

Although the 20 minute requirement would appear to be relatively simple to comply with, as a NJ DWI attorney, I have had numerous cases where the State was forced to concede that the Alcotest results were invalidated as a result of the police not observing my client for the required period.

In a recent case decided by the Law Division, the court reiterated the requirement and went further by establishing guidelines for law enforcement to follow during the course of a DWI arrest to ensure compliance with the rule. State v. Filson, 409 N.J. Super. 246 (Law Div. 2009), is now the controlling case for all parties involved in DWI prosecution as it pertains to this requirement. This includes defendants, DWI defense lawyers, judges, law enforcement, etc.  

I have reviewed this case carefully and come to several conclusions. First, I have always made it a practice to request as much time identifying discovery from the state in driving while intoxicated cases. This includes. motor vehicle recordings, CAD reports, radio dispatch recordings, station or holding cell video. Basically anything that may have a time stamp could illuminate inconsistencies in the arresting officers report. Secondly, it is important to go over the details of the arrest carefully with your client. When discussing this issue with defendants, it is often the case that they recall the observing officer leave the room during some point during the 20 minute period. If they do so, the period must begin anew.

A frequent fact patter I see is what I call hand off cases. This is when someone other than tha arresting officer administers the test. The court in Filson was somewhat vague on this point, but it appears that a combined observation period may be acceptable. However, a meaningful break in the period will not be tolerated. I often find that these breaks occur in hand off cases.

Another interesting issue is whether this requirement can include time transporting the DWI suspect back to the station. The court in Filson framed this issue as a totality of the circumstances consideration, suggesting that if certain factors were present, the state may be able to use this time period towards the twenty minutes. As a DWI and criminal defense lawyer, I suspect that the good DWI attorneys will have a field day with cross-examination of the officer claiming this time period as part of the required period.

I have just scratched the surface regarding one specific element of the state’s proofs. Even if the readings ares invalidated, it does not mean that the defendant can’t be found guilty. There are two ways the state can prove its case, observation and BAC or blood alcohol content. A successful twenty-minute observation argument will only suppress the BAC. The state may still seek to prove that the defendant was DWI based on the observations. But once the readings are invalidated, the window is opened, and good things start to happen for the defendant. In some cases, this could mean an immediate reduction of the period for which the defendant could lose their driving privileges. A successful argument could result in a 9 month reduction. This is significant. For more information on DWI offense, be sure to visit my comprehensive driving while intoxicated practice center

Can the Police Search my Car Without a Warrant?

The answer in New Jersey is…it depends. There is a a federal constitutional  law automobile exception to the warrant requirement which New Jersey subscribes to. But believe it or not, New Jersey goes a step further and gives the individual more protections than the federal law requires. Under federal law, the police can search your car so long as it is readily mobile and there is probable cause to believe it contains evidence of criminality. It it is the mobility of the vehicle that creates what are called exigent circumstances, and jeopardize the preservation of evidence. Under the federal standard, as long as there is probable cause and  any showing of ready mobility, the exigency requirement will be satisfied.

New Jersey law differs and requires that there must be something more to the exigency than ready mobility to obviate the need for a search warrant. For one, the stop of a motor vehicle can not be pre-planned. It must be unforeseen and spontaneous. In addition to probable cause, the state, if challenged, must prove that the exigent circumstances were such that it was impracticable to obtain a warrant.

The concept of exigency is just that, a concept that is only defined on a case by case basis given the totality of the particular set of circumstance that law enforcement was presented with on that occasion. Some of the things the court has considered include:

• the location of the stop
• the time of day
• the ratio of suspects to officers
• the existence of a threat that others may remove the evidence
• safe to leave the car unguarded
• the unfolding of events leading to probable cause.

These are just a few factor. Yet, it is important to remember that because New Jersey search and seizure laws are a bit more defendant friendly, there are more opportunities for NJ criminal defense lawyers to file motions to suppress evidence. Typically speaking, if a defendant is victorious making his motion, the State will not be able to prove the case and the charges may be dismissed.

In addition, the New Jersey Supreme Court has granted individuals further protection against illegal search and seizures by requiring a warrant once the suspect(s) are arrested. This means that if that police have secured the defendant, typically prior to any searches, they may not be allowed to rely on the automobile exception to the warrant requirement. The term arrest is not black and white. Simply being in handcuffs does not necessarily mean under arrest. In most cases the defendant will need to be more thoroughly secured for there to be an arrest for our purposes. None the less, a motion to suppress may succeed if it can be shown that the police searched the vehicle after they had already “arrested” the defendant. This is because New Jersey laws are more stringent as applied to the search incident to arrest exception to the warrant requirement.

Depending on the facts of your case, it may be possible to make a motion to suppress based upon the foregoing. If you feel that your vehicle was searched illegally, you should contact a New Jersey search and seizure lawyer to discuss your case.

Is Medical Marijuana Legal in New Jersey?

The answer is no, not yet. Nonetheless law makers in Trenton have approved a bill that if enacted would legalize marijuana use for medical purposes in certain situations. The proposed bill would restrict the use of medical marijuana to certain illnesses including, AIDS, seizure disorders, cancer, multiple and amyotrophic sclerosis. In addition, the bill limits the amount to 1 oz per month, and can only be obtained by the registered user from the grower or by an approved courier service. No third party representative of the registered user will be allowed to pick up or procure the marijuana for the user. Under no circumstances will the registered user be allowed to grow their own pot.

There is no doubt that the medical marijuana laws if implemented in New Jersey will be among the most stringent in the nation. However, many states, including New Jersey have learned a valuable lesson from California. The purpose behind medical marijuana laws are to give relief to those individuals whose medical condition can truly benefit from marijuana use. Although California had the right goal in mind, it has become increasingly apparent that the laws have been exploited to extend the medical marijuana benefit far beyond the intended recipient. The law clearly lacks the structure necessary to give guidance to enforcement agencies and misses the target as far as public policy is concerned. Production facilities continue to surface in inappropriate areas.

Whether you believe that weed should be legal all together is another topic. But if the medical marijuana laws are to succeed in New Jersey, there must be a program implemented that strictly defines and limits the accessibility to those users who are truly in need. Moreover, the method of dispensation and production must be carefully monitored and organized to avoid the pitfalls that we have seen in California.

Reckless Driving New Jersey

If you have been issued a ticket for reckless driving in NJ, it is important that you understand the harsh consequences that could result if convicted. In addition to five motor vehicle point and insurance eligibility points, there is the possibility of jail and high fines.

Moreover, reckless driving is a enhanceable offense, meaning if you are convicted of reckless driving in New Jersey on more than one occasion, you could face up to three months in jail. If issued a ticket for this serious traffic offense in NJ, contact a traffic ticket attorney and municipal court lawyer who knows how to handle this type of charge.

The section that follows is an excerpt from the Reckless driving statute and some case law snippets that give a brief explination of the type of conduct that may constitute an offense under N.J.S.A. 39:4-96:

39:4-96. A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving and be punished by imprisonment in the county or municipal jail for a period of not more than 60 days, or by a fine of not less than $50.00 or more than $200.00, or both.

On a second or subsequent conviction he shall be punished by imprisonment for not more than three months, or by a fine of not less than $100 or more than $500, or both.

Please take a moment to read some of the case synopsis below which may provide a better understanding as to the meaning of such words as “wanton” and “willful.”

In  State v. Willhite, 40 N.J.Super. 405, 123 A.2d 237 (Co.1956), the court held that driving a car through the main business area of a town at a high rate of speed is reckless driving.

The court in State v. Roenicke, 174 N.J.Super. 513, 417 A.2d 54 (L.1980), held that reckless driving, at its core, is grossly improper operation that threatens others.

In State v. Willhite, 40 N.J.Super. 405, 123 A.2d 237 (Co.1956), the court held that speed is not the determining factor when deciding if a motorist acted recklessly.

In other words, the State must prove that your conduct fell far below what would be considered adequate. Put another way, your actions must have been inexplicably and grossly unsafe.

This is not an easy burden for the State to meet, and depending upon the facts of your particular case, there may be many available defenses to a charge of reckless driving.

I have defended many individuals charged with the offense of reckless driving and have obtained excellent results. If you have any questions, please feel free to call.

Careless Driving

I recently defended an individual charged with careless driving in a local New Jersey Municipal Court. My client had been involved in an accident (he rear ended another car). The Police did not witness the accident, and did not issue a ticket at the scene. Rather, the police waited one week to issue/mail the ticket to my client.

The fact that one is involved in a rear end collision does not necessarily mean that a careless driving charge is appropriate.  If charged with this offense, you should contact a traffic offense lawyer that appears regularly in the court your case will be heard in. The elements of New Jersey careless driving are as follows:

• Operation of a motor vehicle
• careless or without due care operation. This element is measured against what a reasonably prudent person would have done confronted with similar circumstances.
• endangering person or property, or likely to have done so.

The possible penalties for careless driving under N.J.S.A. 39:4-97  in NJ are as follows:

• Fine between $50 and $200
• 2 motor vehicle points
• 2 insurance eligibility points
• possible jail time up to 15 days

In my particular case, the officer who issued the ticket did not witness the accident. In careless driving cases, res ipsa loquitur does not apply. See State v. Wenzel. This means that an officer who does not witness an act of alleged careless driving cannot issue a ticket just because it appears you did something wrong. In the case of an accident, the officer may issue a carless driving ticket based upon the statements of the involved. In other words, unless the State is able to produce a witness at the time of trial, they will have a very hard time proving the case if the officer did not see the act himself.

In my case,  I was able to get the careless driving summons dismissed. As a NJ traffic ticket lawyer who has handled hundreds of these cases, I knew the appropriate steps to take, including having the case marked appropriately so the State did not have the opportunity to reschedule the case to secure the presence of the witness. This is just one example of how I have been able to win careless driving cases time and time again.

You may notice that the statute itself is rather vague as to the necessary conduct for an offense under N.J.S.A. 39:4-97. This provides municipal court defense attorneys with plenty of ammo for trial victories.

If you have been charged with careless driving in NJ, contact the Law Office of Todd Palumbo. There is no substitute for a informed an involved lawyer who looks to win every case. I can help you fight your careless driving violation or any traffic offense you may be facing.

Serving Newark, Jersey City, Irvington, West Orange, Fairfield, Maplewood, Weehawken, Union City, Essex County, Hudson County, South Orange, Cedar Grove, Verona, Montclair, Bloomfield, etc.

Newark New Jersey Traffic Ticket Lawyers Information

If you have been issued a traffic ticket in Newark NJ, your case will be heard in the Newark Municipal Court. All traffic offenses which result in the issuance of a traffic ticket under Title 39, including DWI, will be under the jurisdiction of the local Municipal Court. There are several exceptions, such as vehicular assault, which are serious criminal offenses. Cases Such as these fall under the jurisdiction of the Superior Court of Essex County.

That being said, it is not always necessary to appear in court to resolve a traffic ticket in Newark. Frequently, the court will give the defendant an option to pay the ticket by mail or over the internet, or in person at the violation window on the first floor of the Newark Municipal Court located at 31 Green St., Newark NJ.

What most people are not aware of is that the majority of Title 39 traffic offenses will result in the imposition of motor vehicle points. So, if you plead guilty by mail, or over the internet, or pay your fine at the violations window. there is a good chance you will be assessed points on your license and not realize it until it is too late.

If you have been issued a ticket for speeding, running a red light, careless driving, reckless driving, DWI, leaving the scene of an accident, failure to report, tailgating, following to close, driving while suspended, driving without insurance, etc., it is in your best interest in most cases to plead not guilty and schedule a court appearance.

It is also smart to contact a Newark traffic ticket lawyer for a free consultation. I will take the time to speak with you and assess your case. I will tell you the penalties you face, the likely fines, points and surcharges, and discuss the various defense strategies.

The NJ motor vehicle code, otherwise known as Title 39, is a complex and confusing body of laws. There are, in most instances, penalties and consequences in connection with traffic offenses that the ordinary motorist could never anticipate. For this reason you should take the time to consult a traffic ticket attorney to educate yourself.

Also, it may be helpful to navigate this Essex County Blog to see if some of your questions may be answered. Please call today if you have any questions regarding your particular traffic ticket, speeding ticket, DWI, etc. I am available 24 hours for free consultations

Newark, South Orange, New Jersey, Essex County, Irvington, Maplewood, Orange, Roseland, Jersey City,  Newark Municipal Court 31 Green St., Newark, NJ

First Offense DWI : Essex County New Jersey

Penalties Upon Conviction For First Offense DWI in NJ

The possible consequences for a first conviction for Driving While Intoxicated in NJ vary depending on the nature of the offense. The following is a guide to help those charged with DWI better understand the possible consequences. Remember that every DWI offense is fact specific and a DWI lawyer should be contacted to discuss the specifics of the case.

NJSA 39:4-50 DWI> BAC .08% or more but less than .10% or operating under the influence alcohol

• Fine between $250-400
• Possible jail time of up to 30 days
• DL revoke/suspend of 3 months
• Other $ penalties> VCCB $50, DDEF $100, SNSF $75, NJSA 39:4-50(i) $100
• Court may order participation in supervised visitation program as a condition of probation
• No community service for first offense
• Intoxicated Driver’s Resource Center 12 to 48, satisfy the screening and referral requirements, to be completed on 2 consecutive days of at least. If these requirements are not met, 2 day mandatory jail sentence and no reinstatement of privileges until requirements met.
• May order the installation of Ignition interlock device
• Motor Vehicle Surcharges of $1000 per year for three consecutive years.
• 9 insurance eligibility points

NJSA 39:4-50 DWI> BAC .10% or drugs at any intoxicating level

• Fine between $300 and $500
• Jail sentence not to exceed 30 days
• Suspend license not less than 7 months not more than 1 year
• Other $ penalties: See above
• Other non $ penalties: See Above

If you have been arrested and charged with driving while intoxicated in New Jersey and have questions about your case, call for a free consultation. Don’t believe for a second that you can’t win your case. The state must prove your guilt beyond a reasonable doubt, and the best DWI lawyers make sure they hold the state to this burden.

Essex County, Hudson County, Jersey City, Hoboken, Newark, Weehawken, Maplewood, South Orange, West Orange, Roseland, Verona, Cedar Grove, Union City

Simple Assault Trial Results in NOT GUILTY Verdict in Newark Municipal Court

Today I defended a client accused of Domestic Violence Simple Assault in the Newark Municipal Court. After attempting to resolve the case prior to trial, it became apparent that the complainant  was not interested in any alternative dispositions. This did not disappoint either myself or my client. We were prepared for trial. The discovery provided us with a strong defense. It was clear to see that the alleged victim had motive to fabricate the charges. It was also evident that the complainant had certain underlying issues that impeded her ability to accurately perceive and remember events.

The trial lasted just over two hours and the judge found my client not guilty. The judge found that the alleged victim’s testimony was not believable, given the number of inconsistencies and discrepancies I was able to elicit during cross examination. There was doubt in the judge’s mind as to what really happened. For a conviction in a criminal case, the fact finder must find that the defendant is guilty beyond a reasonable doubt.

The key to this victory, like all trial wins, is preparation. Although the offense is called simple assault, there is nothing simple about preparing a defense when your client is facing criminal simple assault charges. If convicted, the defendant faced possible jail time, heavy fines, and a criminal record. Organization and preparation allows the questioning to flow and the trial judge appreciates this. It saves time and makes the facts, which are new to the judge, easier to follow.

It should be noted that not all NJ simple assault offenses result in a trial. Frequently, the best course of action is to attempt to resolve the case prior to trial. This can be a difficult proposition depending on the nature of the offense and the parties involved. An experienced simple assault attorney will take the necessary steps to put his/her client in the best possible bargaining position pre-trial if the facts call for it. No matter the facts of your particular simple assault offense, a seasoned criminal defense attorney understands how to steer a client clear of conviction.

But remember, there is no substitute for a not guilty verdict. Make sure you speak to an attorney before appearing in the municipal court for your simple assault charge.