When Driving with a Suspended License Becomes a Crime

There are many circumstances that will lead to an individual being charged with an indictable driving while suspended offense. One of the frequent is being charged with driving while suspended on more than one occasion when your license is suspended for DWI. You may also face this charge when you are suspended for your second or subsequent DWI offense and receive a ticket for driving during a period of revocation or suspension.

However, you may not know that you are facing this consequence until you arrive in the municipal court to answer the charge. It is usually at that time that you are told that your case is being transferred to the county for review.  The p0lice officer will not hand you a criminal complaint, just a ticket.

Although defendants are supposed to be made aware of these consequences during the sentencing in connection with the DWI offense, many times courts will forget to do so. Other times people just forget.

Regardless, if your case is transferred and remains in Superior Court, a conviction will mean a mandatory 180 day jail sentence. That time must be served day for day.

I represent people facing this problem, and in many instances I am able to avoid this penalty. In some cases, I was able to retrieve court transcripts from prior DWI convictions and show that the defendant was not properly warned of this penalty. In other cases, I was able to convince the county prosecutor to remand the case to  the municipal court and treat it as a traffic offense.

Interestingly enough, the Appellate Div. just held that a lawyer is not under any  obligation to tell the municipal court about this potential issue. Meaning, if asked, the defendant must tell, but if not, then no.  This can be helpful if the prosecutor or judge does not address the issue, but it  is far from a guarantee.

Even for a first offense DWI and first offense driving while suspended you face a mandatory ten days in the county jail and an additional 2 year loss of license.

Given the amount of county jail time one faces, it really is in your best interest to contact a lawyer if you have a question about this.


Cranfords are the First Manufactured Marijuana Cigarettes

In a funny sort of coincidence, the company producing the first manufactured marihuana cigarettes has named the product Cranfords. The machine rolled cannabis cigarettes come in tins of 10 filtered joints and each tin contains a quarter ounce of weed.

Cranfords sell for between $50 and $60 per tin. Obviously, Cranfords are only available in states that have legalized marijuana use and sale. In New Jersey, marijuana is still illegal and penalized under NJSA 2C:35-10. But there has been waves of proposed legislation that is gaining support.

The product has no relationship to the township of Cranford, where my law practice is located in Union County New Jersey. The product is named after Bud Cranford, the father of a Colorado cannabis grower.

The company has seen good sales since its initial product launch. The packaging is attractive in my opinion and has that keepsake quality about it. I wouldn’t mind having an empty tin just for prosperity. In fact the company sells the empty tins on its website. Maybe I’ll indulge myself (to an empty tin that is).

DWI Related Offenses and Factors for Sentencing

Driving While Intoxicated – First Offense

Under the law, it is illegal for a person to operate a motor vehicle while under the influence of an alcoholic beverage, or some type of narcotic, habit producing drug, or operate a vehicle with a blood alcohol concentration of 0.08% or greater. It is also illegal to allow someone else to operate your vehicle in the above state. If one is charged with DWI as a first offender, there are different tiers of sentencing, depending on the percentage of your blood alcohol concentration.

Tier One: You have a BAC (blood alcohol concentration) of less than .10%, or there is no reading because you refused or the State is unable to prove that the machine was in proper working condition. Here you will face a 3 month suspension of your driving privileges, a $250.00 to $400.00 fine as well as other State imposed monetary penalties. Also a 12 to 48 hour sentence in the IDRC (intoxicated driver resource center) will be imposed. In addition, you face the possibility of interlock device installation being required and up to 30 days imprisonment.

Tier Two: If you have a result of over .10 and the State is successful in their prosecution, you are subject to second tier penalties. You’re driving privileges will be suspended from 7 months to 1 year. You will have to spend 12 to 48 hours in IDRC and again will be subject to fines as well as surcharges from DMV and your insurance company. If your reading is higher than a .15, the additional penalty of having to install an interlocking device in your vehicle will apply.

– Second or Third Offense

If this is your second or third offense for DWI in New Jersey, the tier system does not apply. If you are convicted of DWI as a second or third offender, you will lose your privilege to drive in New Jersey as well as face jail time (mandatory for third offense) and fines. There are also collateral consequences that apply to a conviction for a second or third offense DWI.
Miranda Rights

– It is a common thought among those charged with DWI that because they were not read their Miranda Rights, the case should be dismissed. Miranda Rights only apply in something called a custodial interrogation. This means that you are not free to leave. While most people feel that they cannot just get in their car and drive away, the courts have found that most of the questions the police ask of a person occur before the person is technically in custody. Unfortunately what this means, is that the questions that occur at roadside are not considered custodial and therefore the police are under no obligation to provide you with your Miranda Rights.
Aggravating Factors at Sentencing for DWI

– There are certain factors that can enhance a sentence for DWI. A refusal to submit to the breath test; driving in a school zone; having an extremely high blood alcohol content; causing injury to someone; driving extremely recklessly; having prior DWI’s, driving on the revoked list due to a prior DWI; or even having a child in the car are just some to name a few. If any of the above circumstances were present, the prosecutor is entitled to ask for increased fines; license loss; and jail time.

Underage DWI

– If you are under 21 and drive with any amount of alcohol in your system (.01) you can be charged with an underage DWI. The penalties for a baby DWI as they call it are a 30 to 90 days license loss, participation in IDRC and 15 to 30 days of community service. If your blood alcohol content reaches the level of .08 and above you become subject to the penalties of an adult DWI.

Vehicle Checkpoints

– In a situation where you drove through a vehicle checkpoint, there are strict guidelines that must be followed. For example, the checkpoint must be announced to the public in advance and not allowed to be set up by the field officers. In addition, cars must be stopped in a random and neutral pattern as well as done in a safe and efficient manner.

Plea Bargaining

– Unfortunately, there is no plea bargaining DWI cases in the State of New Jersey. It is acceptable for the prosecutor to make certain sentencing recommendations to the Judge, but he can’t recommend dismissal or lowering the time of license suspension unless the defense lawyer has a good legal argument to put on the record. Absent that, in a case where it is a first offense and the possible license loss is anywhere from 7 to 12 months, the prosecutor may recommend to the Judge that he only sentence you to the minimum of 7 months. Also, it is possible for the prosecutor to move to dismiss some of the other traffic infractions you might have received in connection with the DWI. But to reiterate, a downgrade or dismissal only occurs when your lawyer makes a convincing legal argument.


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.