Category Archives: Driving While Intoxicated

Charged with Refusal? The Ticket may be Incorrect

I’ve represented many clients charged with Refusal to Submit to a Chemical Breath Test. This ticket is usually accompanied by a DWI charge as well. Refusal charges are typically difficult to beat. I feel that I have better success than most overcoming a refusal charge. In most cases, the penalty one faces for refusal can far exceed the penalty for a DWI charge when it come to loss of license.

Over recent years there have been several appellate division cases regarding the procedural aspects of refusal. Most of those have not gone well for the defendants involved or the lawyer who filed it.

However, I have had recent success arguing a new procedural issue that has got some traction and has even resulted in some police departments changing the way they issue refusal violations.

I don’t want to necessarily go to much into the defense, but it is a simple and easy to understand concept which is great for the Municipal Court System. The argument can be summed up in a two or three page brief. The timing of the argument is the most important in my opinion.

If you or anyone you know is facing a refusal charge, it makes sense to see if there is standing to make this argument. I’ll know within 30 second of a consultation whether is can be done.

Arrested in Belmar New Jersey, You may want to Consider Hiring a Lawyer

Arrested

If you have been arrested in Belmar, there is a good chance you have been charged with one of the following:

This list is not exhaustive, but during the many years that I have been representing people charged with offenses in Belmar and other shore towns, it is clear that these are the most common.

Most of my clients I have represented in this capacity are charged with a crime or DWI for the first time and are just realizing that the one night could impact them for the rest of their lives.

It is important to realize that a conviction for any of the above-listed offenses will result in a criminal record that will remain there for at least five years.

If you are a teacher, your employer will be notified that your name has been entered into the State database and you will receive a notice. You could potentially lose your job.

If you are charged with DWI you could lose your license for up to a year for a first offense, two years for a second, and ten years for a third. A third offense carries a mandatory 6 month jail sentence.

The point is this…. you have to give yourself a chance to succeed and hiring a lawyer that not only has experience, but experience in that court is important. I have extensive experience appearing in Monmouth and Ocean County municipal courts and a high success rate.

A free consultation will quickly and comfortably give you the information you need to make good decisions going forward.

If you are facing an offense of any kind in Belmar, don’t compound the situation. Take a deep breath and a little time to educate yourself on your case and make a good decision when it comes time to hire representation.

Challenging Field Sobriety Tests

field_sobeirty_test (2)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.

First Offense DWI Attorneys in NJ, Choosing the Right One

With the onset of the summer months, NJ police throughout the state ramp up DWI enforcement. Accordingly, more drivers are charged with DWI, especially in the Jersey shore area. Those facing a Driving While Intoxicated offense or DUI as it is sometimes called, will ultimately face the very important question of which NJ DWI Lawyer do I hire?

As the DWI defendant surfs the web and absorbs the possible penalties if convicted, panic may set in. There is no sugar-coating it. The penalties can be life altering. The importance of retaining a lawyer with the experience and training to win a DWI case is crucial. I have defended clients charged with DWI and DWI related offenses, such as refusal, all over the state. This area of the law is as complex as it gets in the municipal court arena. Essentially, this is a criminal offense that the state has decided to codify in the traffic statutes. It  requires that a lawyer practicing in this area have the necessary training and experience to not only understand the complexity of the available defenses, but also the science behind the testing devices and procedures utilized in DWI investigations and prosecutions.

With most DWI charges, the state will be relying upon the Alcotest readings (previously Breathalyzer) to prove its case. This is called a per se offense. The penalties and license suspension the DUI/DWI defendant faces will usually depend on what he “blows.”  A 0.10 BAC and above subjects the first offense DWI defendant to a license suspension ranging from 7 months to 1 year.  A reading of 0.08 BAC to .09 BAC can result in a minimum and maximum of a three-month suspension.  Most DWI offenses fall into the category of the 0.10 and above range. Therefore, most arrested and charged with DWI are facing a seven month to one year loss of license in connection with a first offense.

You probably are aware of most of the potential penalties at this point. If not, my site contains information galore on the potential penalties. I only offer this information above for ONE purpose. Ask yourself, if the state cannot rely on the Alcotest readings, what happens then?

This is where a good/experienced/trained DWI lawyer makes his money. “Suppressing” the Alcotest readings is typically the most important part of the DWI defense. Doing so requires more than just surface knowledge of DWI law and procedure. The mistakes that may lead to the suppression of the Alcotest readings are usually embedded in the pages of discovery a DWI lawyer will request from the State. These mistakes are frequently not clear or obvious. Knowing what to ask for and what to look for is not accomplished without training and study of DWI laws and procedures. Personally, I am certified in both the administration of the Alcotest and the Field Sobriety test, and go to trial on DWI cases. Ask your potential lawyer candidates about these certifications. You will most likely find that few are certified.

Why is it so important to suppress the readings? Well, assuming that you blew a  0.13 BAC, which would subject you to a starting point of a 7 mth- 1 yr license suspension, if the state has no readings to rely upon, your starting point suspension goes down to 3 months, a difference of possibly 9 months.

Consider this- once the readings are gone, the State must rely upon the observations of the police officer who conducted the field sobriety test to prove your are guilty of the three-month DWI offense. Observations may be enough to prove you are guilty, but only at the three-month level. However, what if your attorney can effectively cross-examine the officer who performed these tests and it is shown that he did so improperly? If your DWI lawyer does this effectively, you may be found not guilty of DWI all together. Is your attorney certified in the administration of these tests? Will he know the right questions to ask?

What if the basis for the initial stop of your vehicle was illegal, which would result in the charges being dismissed all together if you could prove it. Has your lawyer ever argued a probable cause motion for a DWI related offense?

The list can go on and on as it pertains to possible twist and turns a DWI case can take. Therefore, it is very important that you have a lawyer who is qualified to handle it and is not going to rip you off in the process.

Money…how much should it cost? Well, you will get prices all over the board. Expensive doesn’t mean good and cheap does not mean bad. But, DWI cases are long hauls, with multiple court appearances, motions, trials, experts, etc. The reality is this…if your lawyer is going to do you justice, he will have to spend A LOT of time on your case. Therefore, in my opinion, you should be skeptical of a “low-ball” quotes. Likewise, a very high number should also be scrutinized and questioned. I would never quote fees in an article such as this, but for the type of knowledge and experience I have, my fees are VERY reasonable as compared with similarly qualified attorneys.

Once it has been established that the lawyers you are dealing with are sufficiently qualified, there is (of course) a comfort level that you must have with the attorney. This comfort level may or may not come with a price tag, but that will be a personal decision to be made by the defendant.

I can be reached to answer your questions at the number provided on the top of this page.

DWI Convicition Vacated for Violation of Defendant’s Due Process

I recently filed a motion to vacate a DWI conviction on behalf of a client. I am representing this client on his second DWI offense. However, I determined that I may be able to limit his exposure on his second offense by challenging the first conviction. I filed a Motion for post-conviction relief in the court where he was first convicted. The grounds for the motion were numerous, but the main argument revolved around the court’s failure to adequately advise my client of, inter alia,  his right to trial, his right to confront witnesses, his right to remain silent, etc., and failure to elicit a factual basis for the offense to which he pleaded guilty.

The motion was argued and the judge ordered that the conviction be vacated and the matter be returned to the trial calendar. Now we have the opportunity to go to trial on the DWI charge. This is a fairly old offense, so the state’s proofs my be a little “dusty” and the officer’s recollection a little clouded.

In the meantime, my client does not have a conviction for DWI on his record and I can have two opportunities to try to keep him out of that second offender range of punishment, and possibly beat both charges all together.

Staying Out of Jail on a Third or Subsequent NJ DWI Offense

Experienced New Jersey DWI attorneys representing defendants charged with a third or subsequent Driving While Intoxicated offense know the challenges that these cases present. If convicted of a third or subsequent DWI offense in NJ, the law calls for a mandatory 180 day (6 month) jail sentence. This is in addition to the ten year loss of license which is also mandatory. Unfortunately, unlike first offense DWI, there are no step down provisions, unless 10 years has transpired since the last conviction. As a consequence, an attorney must make calculated and knowledgeable decision when choosing the most effective defense strategies. In some cases this means taking the case to trial. But sometimes this alone is not enough to protect the client, especially when one considers the very real possibility of prison.

In order to protect my clients to the fullest extent, I will revisit each one of the prior convictions and determine the following

  • Was the defendant represented by counsel?
  • Was the defendant advised of their right to counsel?
  • Did the court illicit an adequate factual basis?
  • If the defendant was represented, was counsel constitutionally adequate?
  • Do all of the prior offenses count as prior offenses for enhancement purposes, i.e. certain out of state convictions?
  • Any other procedural or substantive legal issue that may negate a  prior conviction?

Typically prior convictions are attacked via a Post-Conviction Relief Application. The type of relief that may result depends upon the nature of the defects discovered in the prior proceedings. In some circumstances, a successful motion will completely negate the prior convictions, thus automatically turning the present charge from a third to a second or a fourth to a third. Jail is not mandatory for a second offense, and a third in conjunction with a 10 year step down can also result in a second. There may be other combinations that further reduce possible penalties.

In other cases, where a defendant was unrepresented by counsel in the prior offense, I may be able to make what is called a Laurick Application. Although a successful Laurick Application will not vacate the previous conviction, it will order that the prior conviction can not be used to enhance the loss of liberty in connection with a subsequent offense. This means that the defendant may be subject to a 10 year loss of driving privileges, but not subject to the mandatory term of imprisonment.

Sometimes this argument is made in conjunction with others to cast the widest net possible. What ever the case me be, I take every conceivable step to reduce my client’s exposure to the harsh penalties they may be facing with a third or subsequent New Jersey DWI offense. If you need more information please call The Law Office of Todd Palumbo for a free consultation.