Assault by Auto, Assault with a Motor Vehicle, New Jersey

Assault by auto is a New Jersey criminal offense and can be charged as a disorderly persons offense, a fourth (4th) degree, third (3rd) degree, or second (2nd) degree crime. The nature of the charge and the possible penalties will depend upon the extent and seriousness of the injury to the victim, whether the defendant was intoxicated (DWI) at the time of the arrest, and the location of the alleged crime

The elements the State must prove beyond a reasonable doubt to convict an individual charged with assault by auto are the following:

1) The person drove recklessly

2) The person caused bodily injury to another

If the defendant operated a vehicle recklessly, and simple bodily injury results, the defendant will be charged with a disorderly persons offense. This exposes the individual to a possible 6 month jail sentence and up to $1000 fine

If the defendant drove recklessly and caused serious bodily injury, the driver will be facing a fourth degree offense, which carries up to 18 months in jail.

If the accused was driving while intoxicated and serious bodily injury to another resulted, The ensuing criminal charge will be a third degree offense, with up to 5 years in jail as a possible consequence. If simple bodily injury is alleged, than a DWI related assault by auto is a fourth degree.

DWI related assault by auto is a second degree offense if the offense occurs in a school zone, and serious bodily injury results. A second degree offense carries up to 10 years in State prison.

Remember, in addition to injury, the State must prove that the defendant acted recklessly,  which is defined as consciously disregarding a substantial and unjustifiable risk that injury will result from his/her conduct.

If you or someone you know has been arrested and charged with this serious motor vehicle related offense, contact an attorney prior to speaking with police and before any court dates. This is a serious offense and, if convicted, the defendant could be sent to jail for an extended period of time. Todd Palumbo is available 24/7 fro free consultations.

Drug Free School Zone Laws Relaxed

The Governor signed into law this week law that relaxes the draconian school zone mandatory prison drug law that has been in place since 1987. Under the new law,  judges will be given more discretion in sentencing those caught dealing in drug free school zones.

The judge will take into consideration certain factors, including the proximity of the offense to the school zone, the time of day and whether school was in session. Based upon that determination, the judge will be able to depart from the mandatory jail sentence, and in some cases, depending on the weight of the drugs, sentence the defendant to straight probation.

Those who are currently serving custodial sentences for mandatory school zone offenses will be able to appeal their sentence.

It should be noted that school zone offenses accompanied by crimes of violence or gun possession will not fall within the purview of the new law. Additionally, there are other factors that will certainly weigh heavily into the equation, including prior record, prior drug distribution, and whether other sentencing guidelines would preclude the defendant from consideration.

With every drug distribution offense, there may be “Brimage” concerns that may enhance the penalties/jail time/mandatory period of parole ineligibility. However, under many circumstances, this new law will make it possible for the defendant to avoid a custodial sentence. Prior to the implementation of this new legislation, a non-custodial sentence for a school zone conviction was possible, but hard to come by, given the mechanical factors that were strictly applied.

Ignition Interlock Now Required in Certain DWI Offenses

This week, the Governor signed into law amendments under “Ricci’s Law” that will dramatically alter the penalties that may be imposed upon conviction for a New Jersey DWI offense. Most notably, the installation of an ignition interlock device will be mandatory for some DWI and DWI related convictions.

The ignition interlock system is a device that is installed into a vehicle which consists of a mouth piece and an alcohol detection device. The monitor is attached to the ignition system. If the device detects the presence of alcohol, the vehicle will not start. The monitoring agency may also be notified. The device cannot be removed or tampered with, as any attempt to do so would remotely trigger an alarm with the monitoring agency. The defendant will typically incur the cost of installation, monitoring, etc.

There are two scenarios where the ignition interlock will be mandatory for vehicles primarily operated by the DWI defendant:

1) Refusal Conviction

2) A BAC of 0.015% or greater

On its face, it would appear that primary operation is going to be a frequently litigated issue, and will probably wind up spawning its own set of case law. Prior to the new law, the sentencing judge had an option to either suspend the registration or impose the ignition interlock. In the majority of cases, the former was imposed. However, the new laws make it mandatory in the herein stated situations.

The public policy behind this law is the desire to insure that those convicted of DWI offenses remain off the road during the period of suspension, and negate the possibility that they will begin to drink and drive immediately. From my perspective, the legislature had already accomplished this by making it a mandatory jail sentence for those caught driving while suspended as a result of a DWI in addition to a additional 1 yr loss of license.

The DWI laws continue to expand….

If you have been charged with a DWI offense, do yourself a big favor, and talk to a lawyer immediately.

Refusal Offense will Count as Prior Offense for Sentencing Enhancement

The appellate division recent reversed a long standing precedent that a prior refusal offense/conviction could not be used to enhance penalties in connection with a subsequent DWI offense. Before this decision, a defendant with a prior conviction for refusal only would be treated as a first offender, for example, if they were charged with a DWI  (first) after the refusal offense. The same scenario will now expose the defendant to treatment as a second offender, greatly increasing the possible penalties that the accused will face.

Another hypothetical would include the following: Defendant is convicted of DWI in 2002 (first offense). In 2006, he is convicted of refusal only.  As a result of that conviction, the defendant would be subject to a 2 year loss of license, and treated as a second offense for sentencing. In 2008, the defendant is again charged with DWI. Under the old law, the defendant would be subject to second offense penalties only, because the refusal took place before the DWI. However, the accused will now be looking at a third offense and mandatory 6 months in jail upon conviction. These are substantial changes and dramatically change the DWI defense landscape.

This is a confusing time-line driven calculation and the order of offenses, as well as the timing, still makes a huge difference. To insure that you fully understand the nature of the penalties that you face, you should contact a NJ DWI lawyer who understands the current status of the law.

New Expungement Law Allows for Shorter Time and More Offenses

The governor signed into law new legislation broadening the expungement statute. The most notable changes pertain to those convicted of certain drug distribution offenses. In the past, and under most circumstances, an individual convicted of a drug distribution offense would not be eligible for an expungement, unless the offense involved a very small amount of marijuana. The new law will allow those with convictions for third or fourth degree drug distribution convictions on their record  to apply for an expungement, and have the offense removed. This is a fantastic opportunity for those who have been plagued for years because of a drug distribution offense on their criminal record, with no chance of erasing it.

In addition, the new laws relax the time limitations for the expungement of indictable (felony) convictions. Under the old law, the defendant could not apply for an expungement until 10 years had passed. Under the new expungement statute, certain indictable convictions will be eligible for consideration after a period of 5 years. There will be a series of factors that the court will consider when deciding if an early expungement should be granted. The important thing is the application can be filed, in most cases, 5 years earlier than before.

There are other changes, but none as beneficial as those stated herein. I speak to many people each year who have been denied employment because of a felony/indictable conviction. Because of time bars and offense limitations, I could not help. But now there will finally be an opportunity. If you have any questions regarding the changes to the expungement statute, please call.

NJ Double Murder Conviction Reversed, Trial Judge Improperly Questioned Witness From Bench

The New Jersey Supreme Court reversed an Ocean County double murder conviction after finding that the trial judge improperly questioned defense witnesses, while, at the same time, bolstering the testimony of the state’s witnesses. In State v Obrien, the Court, in its decision, discussed the limitations on a trial judge and the questioning of witnesses, stating that the defendant is entitled to face just one adversary. Questioning by the trial judge that amounts to cross examination of defense witnesses, and bolsters the state’s case, cast a cloud over the testimony of all and sways the scales justice unfairly on the side of the state. Of course, the holding could also be applied to questioning from the bench which would illicit responses that tend to lend credence to the testimony of the defendant.

This decision has applicability to all New Jersey court proceedings, including those in the municipal courts. Unfortunately, this type of judicial activism is not uncommon. In municipal courts, prosecutors with heavy case loads do not always have time to prepare fully for trials. In most municipal court matters, the facts are in the state’s corner. However, when they are not, or where there is the threat of dismissal on procedural grounds, trial judges may inadvertently taint the testimony of witnesses in an attempt to gather all the relevant facts. It should be noted that most judges have tried their fair share of cases. Therefore, instinct may kick in, and the effect of the involvement may not be fully contemplated. Nonetheless, the judge is supposed to make a decision based upon the evidence before the court. Trials are, in large part, a contest between attorneys, and preparedness plays a large role in the process. Failing to ask the right question or missing key objections is part of the game in an adversarial proceeding.

But one must remember, the overwhelming majority of court proceedings are conducted in a fair and balanced fashion. Although this case highlights a situation where the trials judge went to far, this is not the norm. Most judges are impartial and measured in their approach.

This decision is

NJ License Restoration Attorney, Child Support Suspension, Nonpayment

Child Support accounts are monitored by probation. The State of New Jersey attaches child support obligations to the NJ license number on the account. Therefore, if an individual falls behind on child support payments (called an arrearage), the division of motor vehicles (motor vehicle commission) will be notified and driving privileges will be suspended (revoked). In addition, a child support warrant will be issued for the individual’s arrest. This warrant is typically issued by the county probation department or county court. The license will not be restored until such time as the outstanding child support is paid and the warrant is vacated

It is often the case that the individual who has fallen behind on child support payments owes a large amount of money. As an attorney who represents clients with child support related license suspension, I realize that it may be impossible for some to pay the full amount that is owed all at once. My law firm will communicate with the court and probation to get your case re-listed. We will then work with our client to come up with a REASONABLE child support payment schedule. Attorney Todd Palumbo will present the arrangement to the court. If accepted, my client will make a good faith payment towards the child support obligation, the warrant will be lifted, and the license restored.

Suspensions for non-payment of child support can created a cycle of problems that an experienced attorney can help you avoid. In my experience, many of my clients have accumulated driving while suspended convictions as a result of nonpayment of child support related suspensions. This can lead to jail time and thousands of dollars in surcharges and additional child support related issues.  The problem is fixable. Do not let it continue to snowball and fester. The quicker it it is addressed, the better.

I am a New Jersey license restoration lawyer who provides 24 hr free consultations. Please feel free to contact me with your questions.

Dismissal of Leaving Scene of an Accident Offense in New Jersey Municipal Court

I had a great result in the New Brunswick Municipal Court today. My client was charged with leaving the scene of an accident and careless driving. The defendant had one prior conviction for leaving the scene.  Therefore, the defendant was exposes to the enhanced penalty provisions of NJSA 39:4-129. If convicted of a second offense under subsection (a) of the statute (injury), the accused will permanently forfeit their license (that means a lifetime suspension). In addition, there is the real possibility of jail with second offenses.

Although the victim was injured, the injuries were not “serious.” Nonetheless, a civil suit was pending. This actually helped in this scenario. We conferenced the matter with the prosecutor, and by the end of the conference, the state recommended that the leaving the scene of an accident summons be dismissed, and that the defendant plead guilty to the careless driving offense (2 points, $100 fine).

This outcome was achieved through careful planning and preparation. There are a number of legal issues present when a victim has a pendant  matter in the civil courts, especially a PI case. The various strategies employed in these situations require legal training. But it is often not in the best interest of the victim to testify during the municipal court proceeding, as it may adversely affect the civil case.

This is not always the scenario, and you should contact an experienced lawyer for a consultation regarding your particular offense. But with a some careful planning and preparation, I was able to achieve a result that my client was extraordinarily pleased with.

I Pleaded Guilty to a Zero Point Ticket, But DMV Still Suspended Me For Points

If you are reading this page, it is safe to say that you are probably in one of the following predicaments.

1) Your license was in a probationary status following either a suspension for points (i.e. persistent violator) or a MVC appeal that resulted in no suspension but imposed a period of probation whereby you were prohibited from receiving any moving motor vehicle violations.

2) Your license was suspended at the time you received the motor vehicle summons, but your were not issued a ticket for it, nor did you realize it, and now NJMVC wants to suspend your driving privileges for six months.

Of course, there could be multiple scenarios that can produce the above quagmire. But here is what you need to know. If you have accumulated a number of points on your New Jersey license, and are in the danger zone for a Motor Vehicle Commision imposed suspension, or you are on probationary status because of a persistent violator situation, just about any moving violation will result in a Division of Motor Vehicles imposed suspension.

Therefore, if you have been issued a NJ traffic ticket for a moving violation, you have some choices, a few of which I discuss below:

1) There are only a few non-moving, no point amendments available in New Jersey. Both Judges and Prosecutors are extremely reluctant to offer these amendments and can only do so in certain situations. Additionally, (and unfortunately), you will most likely need the assistance of  New Jersey traffic ticket lawyer who has experience in the court that you are in and who specializes in this area of the law (such as I do). Believe it or not, obtaining these plea offers is very difficult in most jurisdictions.

2) If step one is not an option, Go to trial. Most traffic violations do not expose the defendant to a court imposed suspension. Fines and points could result upon conviction, but the points are going to expose you to an administration suspension in any event, so why not take a shot. If you win, you are not guilty, and the ticket goes away. However, trial is not always a good option, and there are other, more complicated means by which your ticket may be dismissed. But those procedures are not within the purview of this article. What ever the case may be,  you should consult with a lawyer before making any decisions. Moreover, if you want to got to trial, I would urge you to hire representation to give yourself the best chance to win.

Finally, If it is too late, and you have already received the proposed suspension notice from the Motor Vehicle commission, make sure you appeal the suspension. Once again, it is wise to hire an experienced motor vehicle and DMV appeal attorney for the proceeding. It is often the case that I am able to completely eliminate or dramatically reduce the proposed suspension at the appeal.

Transfer of Probation for a New Jersey Sex Offense Conviction

One of the biggest concerns for a defendant facing a sex related criminal offense in New Jersey is whether Megan’s Law Registration will be imposed as a result of conviction. In New Jersey, there are certain sex related offenses that require registration and some that do not. For example, a conviction for 4th degree lewdness does not expose the defendant to the registration requirement in New Jersey. However, although New Jersey may not require it, if you reside in another state that is a member if the interstate compact, you may be required to register in your home state.

Due process dictates that the resident be given a hearing to determine if the registration requirement is to be imposed. But there are some real bureaucratic nightmares that can arise in these situations. For example, if you are convicted of a sex related offense in New Jersey,  sentenced to non-custodial probation, and your home state is a member of the compact,  it is highly likely that you will be required to remain in New Jersey for 5 days after sentencing while your probation is transferred, and the home state determines if you are subject to its registration laws. In some cases, even if it is clear that the offense that you were convicted of in New Jersey would not subject you to Megan’s Law in this or any other state, the receiving state, or home state may still take 5 days to OK your return.

The problem is that no one, including most lawyers, is aware of this. The only individuals that really deal with the transfer issues are probation. And although probation conducts the pre-sentence interview and knows with almost complete certainty what the imposed sentence will be, they fail to warn the defendant of this “glitch” in the system. Therefore, the defendant is not aware of it until the very last minute, typically after the sentencing and during the post sentencing probation meeting that same day.

The problem is that I am not sure how uniformly the various New Jersey Counties (including Essex County)  implement this procedure, particular for a 4th degree lewdness offense. The reason I question its application is because after dealing with a situation such as this, I contacted a number of experienced New Jersey criminal defense attorneys who routinely handle sex offense cases, and not one of them was aware of the compact regulations and transfer rules.

What never ceases to surprise me is the never ending government regulations that have absolutely no rational basis. Particularly in this scenario, the defendant will frequently be out on bail pending sentencing. This means that the defendant is already convicted and awaits sentencing for a period that usually exceeds thirty days, during which time the defendant returns to his home state. It is not until after he is sentenced that the compact kicks in. Think about this for a second. The public policy behind the transfer protocol  is to protect the residents of the home state from a potentially dangerous sexual deviant. But they allow the convicted felon to return to the state immediately following a guilty plea in many instances. Does the defendant only become dangerous after sentencing? This makes ABSOLUTELY no sense.

One good thing to come out of this whole experience has been that this further confirms my belief that NJ lawyers should probably specialize in only one or two areas of law. I say this because of the constantly changing legal landscape in connection with all areas of the law. The changes are too numerous and to frequent for an attorney to keep up with all of them. Limiting the practice to one area, such as criminal and municipal court practice allows me to keep current and provide my clients with the type of representation I would want if standing in their shoes.