New Jersey Criminal Lawyers Blog

In January 2010, legislation was passed and signed which changed the expungement laws in New Jersey. Expungement is the process whereby a person previously arrested and/or convicted of a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation can have his or her record expunged or hidden so no one can know that he or she has a "criminal record." Expunging your criminal record can be very beneficial as most employers conduct criminal background checks. You don't want to lose a job offer because of that crazy night you had in college or that one night you smoked weed on the beach after high school graduation. See New Jersey Statute 2C:52-1 for the statutory definition of expungement.

The expungement laws of New Jersey are found at New Jersey Statute 2C:52-1 through 2C:52-32. The laws now allow for an expungement petition to be filed after a shorter waiting period and allow for expungement of third and fourth degree drug convictions. N.J.S.A. 2C:52-2. Previously, a person seeking an expungement for a crime would have to wait ten years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, to file a verified petition for expungement. To seek an expungement you must not have been convicted of any prior or subsequent crime, in New Jersey or any other jurisdiction or not be adjudged a disorderly person or petty disorderly person on more than two occasions. N.J.S.A. 2C:52-2.

The current law now allows for the granting of an expungement after at least five years. The new law states:
(1) less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.
N.J.S.A. 2C:52-2.

A court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay to determine if compelling circumstances exist for granting an expungement. N.J.S.A. 2C:52-2. Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought. N.J.S.A. 2C:52-2.

The law now allows for an expungement of a third or fourth degree sale or distribution of drug conviction if the court finds the expungment is consistent with the public interest, giving consideration to the nature of the offense and the petitioner's character and conduct since conviction. Previously, only drug charges for marijuana of 25 grams or less and hashish of five grams or less could be expunged. N.J.S.A. 2C:52-2(c).

Motor vehicle violations are not able to be expunged. See N.J.S.A. 2C:52-28.

Additionally, if you are seeking an expungement of a disorderly persons offense or a petty disorderly persons offense you must wait five (5) years from the date of conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later. N.J.S.A. 2C:52-3.

If you are seeking an expungement of a municipal ordinance violation you must wait two (2) years from the date of conviction, payment of the fine, satisfactory completion of probation or release from incarceration, whichever is later. N.J.S.A. 2C:52-4.

If you are seeking an expungment of a juvenile delinquency adjudication you must wait five years from the final discharge of the person from legal custody or supervision or after the entry of any other court order not involving custody or supervision. N.J.S.A. 2C:52-4.1

Furthermore, you can also seek expungement for an arrest not resulting in a conviction. For example, if you were arrested and charged with a crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance and the charge was dismissed, you were acquitted or the charge was dismissed pursuant to a program of supervisory treatment you can seek an expungement six(6) months after the order of dismissal or adjudication. N.J.S.A. 2C:52-6.

There are also a number of crimes that cannot be expunged, which include: murder/homicide, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Criminal Homicide, except death by auto; Kidnapping; Luring or Enticing; Human Trafficking; Aggravated Sexual Assault; Aggravated Criminal Sexual Contact; if the victim is a minor, Criminal Sexual Contact; if the victim is a minor and the offender is not the parent of the victim, Criminal Restraint or False Imprisonment; Robbery; Arson and Related Offenses; Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child; Endangering the welfare of a child; Causing or permitting a child to engage in a prohibited sexual act; Selling or manufacturing child pornography; Perjury; False Swearing; Knowingly promoting the prostitution of the actor's child; Terrorism; Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices; and conspiracies or attempts to commit such crimes. N.J.S.A. 2C:52-2(b).

Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment. N.J.S.A. 2C:52-2(b).

Hiring an experienced criminal defense attorney to process your expungement petition can save you time and future aggravation. The expungement process in the Superior Court of New Jersey can be a time consuming and frustrating process. An experience criminal defense attorney can determine if you are eligible for an expungment and file the petition. It is important to notify all law enforcement agencies that may have a record of your matter. If you miss one agency your "criminal record" may still be found by that future employer or nosy relative.

SOURCES

New Jersey State 2C:52-1 through 2C:52-32.

In State v. Laura Moran, a decision rendered on July 13, 2010 by the New Jersey Supreme Court, the Court illuminates and adds context to a previously ambiguous law that allows New Jersey municipal court judges to revoke a driver's license for willful driving violations.

New Jersey Statute 39:5-31 gives the municipal court judges the power to revoke a defendant's driver's license for certain willful driving violations. This statute seems to give the court a wide range of power in determining when a defendant's driver's license can be revoked and for how long, especially since the law does not provide any standards or guidelines for making such determinations. This issue was addressed in State v. Laura Moran where the defendant challenged the Aberdeen (Monmouth County) Municipal Court's decision to suspend her driver's license for 45 days based upon willful reckless driving.

The facts of this case involve Moran driving in a left turn only lane and passing two other vehicles in an intersection without making the left turn; in fact, she cut off one of the vehicles, a tractor trailer, while illegally merging into the appropriate lane. The observing officer testified that Moran was uncooperative and refused to provide him with appropriate documentation after pulling her over. Moran also refused to exit the vehicle upon request, and subsequently complied only after backup arrived. She received summonses for reckless driving (N.J.S.A. 39:4-96), improper display of license plate (N.J.S.A. 39:3-33), and obstruction of the windshield (N.J.S.A. 39:3-74). She also had a history of other numerous motor vehicle violations.

During the municipal court trial proceeding, Moran exhibited emotional and disruptive behavior. The trial court decided to suspend Moran's license based on both her "willful and wanton" violation of reckless driving and her "demeanor" in court. Both the New Jersey Superior Court Law Division and the Appellate Division upheld the trial court's sentencing. The case was then appealed to the New Jersey Supreme Court.

The New Jersey Supreme Court determined that the "willful" language in N.J.S.A. 39:5-31, which triggers license suspension, is better described as a deliberate or intentional disregard for lives or property while operating a vehicle. In short, this statute is invoked "only in reckless-driving cases that present aggravating circumstances."

The New Jersey Supreme Court then addressed the lack of standards governing license suspension in an attempt to curtail random and unpredictable sentencing. The Court held that license suspension, as well as the length thereof, should be determined by a trial court after considering several factors. The Court listed seven factors, while still allowing for other reasonable considerations that trial courts may find as relevant factors.

First, courts must consider the nature and circumstances of the defendant's conduct, including the level of risk involved and whether physical harm or property damage resulted. Second, the courts must consider the defendant's age, length of time as a licensed driver, and the number and seriousness of prior infractions. Third, courts must consider the length of time between infractions as well as whether the defendant's driving record indicates he/she is likely to commit another violation. Fourth, courts must consider whether the defendant's attitude indicates that he/she is likely to commit another violation. Fifth, courts must consider whether the defendant's conduct was the result of circumstances unlikely to occur. Sixth, courts must consider whether license suspension would cause excessive hardship to the defendant and/or dependents. Last, courts must consider the need for personal deterrence in order to prevent future violations.

The New Jersey Supreme Court noted that it remains within the trial court's power to determine the weight given to each factor in determining whether to suspend licenses, without abusing its discretion of course. The weight placed on these factors will vary on a case-by-case basis.

Requiring trial courts to state their reasoning for suspending licenses under N.J.S.A. 39:5-31 will strengthen appellate review and protect defendants from arbitrary sentencing. Because of the New Jersey Supreme Court's decision of this case, N.J.S.A. 39:5-31 can no longer be seen as a vague statute giving unbridled discretion to courts.

The Supreme Court reversed the Appellate Division's sentencing decision and remanded the case back down to the municipal court to consider the factors listed in the opinion.

If you have been charged with a serious traffic violation it is important to discuss the seven factors listed above with an experienced criminal defense attorney to determine if the municipal court judge may suspend your driver's license. An experienced criminal defense attorney may be able to argue to the municipal court judge that your facts and circumstances do not warrant a license suspension.

SOURCES

New Jersey Statute 39:5-31
State of New Jersey v. Laura Moran, Supreme Court of New Jersey, A-55-09, decided July 13, 2010.

In a Superior Court of New Jersey trial case, Ender Pompa was initially convicted by a jury of multiple drug charges after 30 pounds of marijuana were found in his possession.
On July 2, 2010, the Superior Court of New Jersey, Appellate Division, reversed the trial court's decision and entered an order suppressing the evidence and for the conducting of a new trial. State v. Pompa, New Jersey Superior Court, Appellate Division, Docket No. A-0139-08T4, approved for publication July 2, 2010.

The facts of the case involved a State Trooper's traffic stop of a tractor-trailer for an invalid registration. During the traffic stop, the Trooper's suspicion was aroused due to an overwhelming smell from roughly 20 air fresheners hanging within the truck's cabin. The Trooper then performed a safety inspection in compliance with federal regulations to make sure all proper safety mechanisms were functioning within the truck's cabin. Upon entering the cabin, the Trooper smelled a strong odor of unburned marijuana. Without first obtaining a warrant, the Trooper entered the cabin's private sleeping quarters and searched a closet where he found several duffel bags containing marijuana. The truck was then impounded and the driver was taken to the State Police barracks to be processed. The driver was cooperative with the Trooper during the traffic stop.

In conducting a safety inspection of a vehicle, a law enforcement officer's search may not exceed the "spatial scope" allowed by regulation; a search of a driver's private belongings is not authorized without a warrant. However, there is an exception where a lawful warrantless search may be justified. State v. Pineiro, 181 N.J. 13, 19 (2004) and State v. Pena-Flores, 198 N.J. 6, 28 (2009). As to the circumstances of this case, a warrantless search would have been valid if: the traffic stop was unexpected; the police had probable cause that the vehicle contained contraband; and exigent (or pressing) circumstances made it unsuitable to seek a warrant. State v. Pena-Flores, 198 N.J. 6, 28 (2009). Some exigent circumstances may include whether it is safe to leave the vehicle unguarded or whether the delay caused by obtaining a warrant would place the Trooper in undue risk. Pena-Flores requires more than probable cause; exigent cicircumstances are also required.

The Appellate Division found that no exigent circumstances existed in this case that would justify a warrantless search of the driver's private quarters. The court reasoned that the Trooper was in possession of the keys to the truck and could have obtained a warrant while he had the truck towed or impounded. The Court reinforced that mere proof of probable cause as to the odor of marijuana during an unexpected vehicle stop is not enough to justify an unauthorized search of a truck driver's sleeping quarters. The Court held that since the Trooper performed an unauthorized warrantless search when no exigent circumstances existed, the search was invalid and the discovery of the contraband could not be admissible evidence at trial; the lower court's decision was reversed and the case was remanded for a new trial with the suppression of evidence as to the finding of marijuana.

This case helped to identify the variety of factors that must be considered that would justify a warrantless search when probable cause exists: the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by a passerby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

If you are arrested for a serious drug offense you need to discuss with an experienced criminal defense attorney these factors and the totality of the circumstances leading to your arrest to determine if the evidence in your case should be suppressed. The case law on warrantless searches continues to evolve as new facts and circumstances are presented to the courts.

Sources:

State v. Pompa, New Jersey Superior Court, Appellate Division, Docket No. A-0139-08T4, approved for publication July 2, 2010.

State v. Pena-Flores, 198 N.J. 6, 28 (2009).

State v. Pineiro, 181 N.J. 13, 19 (2004).

Marijuana use and possession have become a frequently violated offense at the Jersey Shore in Ocean County and Monmouth County. A drug offense is something everyone wishes to avoid having on their record. Having a drug offense on your record can cause detrimental consequences, especially when applying for jobs or even retaining employment.

If you are charged with a simple marijuana offense, you may still have an opportunity to keep your record clean. Assuming that you have no prior drug offenses, obtaining a conditional discharge is an option worth discussing with an experienced criminal defense attorney if you value a clean record.

A conditional discharge is a diversionary program that allows first time offenders to avoid being convicted of simple marijuana charges amounting to a disorderly persons offense (i.e. possession of marijuana under 50 grams (N.J.S.A. 2C:35-10a(4)), possession of paraphernalia (N.J.S.A. 2C:36-2), or use of marijuana (N.J.S.A. 2C:35-10(b)). Most simple marijuana charges are disorderly persons offenses which are handled in New Jersey in municipal courts. The specific requirements to obtain a conditional discharge and the consequences of a conditional discharge are cited in New Jersey Statute 2C:36A-1.

In obtaining a conditional discharge, you are agreeing to receive supervisory treatment (similar to probation) for a period of up to three years, usually one year, and to pay significant fines adding up to $833.00. In return, the court will suspend further proceedings of the drug charge during the conditional discharge period. The court may also impose other penalties pursuant to a conditional discharge, such as suspension of your driver's license.

As part of the supervisory treatment program, you will be required to meet periodically with your conditional discharge/probation officer and submit to and pass urine tests. If you successfully complete the supervisory treatment program and remain out of trouble for the conditional discharge period, the court will dismiss the drug charge and you will avoid having a conviction. If you fail a drug test or are charged with another offense during the conditional discharge period, the Court will reinstate the proceedings of the original marijuana charge.

While a conditional discharge can prevent a drug conviction from appearing on your record, it will not remove the arrest from your record. After the conditional discharge is successfully completed, you can have the arrest removed from your record through a process called expungement.

If you are charged with a simple marijuana offense, you should hire a local criminal defense attorney who has experience representing clients in the municipal court that you are summonsed to.

It is important to note that settling for a conditional discharge may not be your best option, especially if the facts and circumstances of your case make it likely that you will be found not guilty at trial or if evidence can be suppressed by the filing of a motion to suppress .

Also, remember that a conditional discharge is only available once! If you agree to a conditional discharge, you will neither be eligible for another one in municipal court nor for pre-trial intervention in New Jersey Superior Court on an indictable charge. (Court Rule 3:28, Guideline 3(g).

Simple rights and formalities afforded under the law are sometimes required to be read to a person under arrest. One of these legal rights, the right to refuse a breathalyzer test, has recently created some attention leading to new implications under New Jersey Law.

In New Jersey, any person who operates a motor vehicle on any public road, street or highway or quasi-public area shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood to determine a drunk driving violation. N.J.S.A. 39:4.50.2. Upon refusing, the law enforcement officer is required to read an 11 paragraph standard statement advising the driver of the consequences of refusing. New Jersey Division of Motor Vehicle Standard Statement for Operators of a Motor Vehicle

An issue concerning the inability to understand consequences associated with refusing to submit to an alcohol breath test was recently decided on July 12, 2010 by the Supreme Court of New Jersey in State v. German Marquez. State v. Marquez, A-35 September Term 2009, Supreme Court of New Jersey. The Court held that the statements used to explain to a motorist the consequences of a refusal must be given in a language the person speaks or understands. In the Marquez case the defendant was advised of the refusal consequence in English and there was no dispute that he did not understand English, so his refusal conviction was reversed.

The facts of the Marquez case involve a Spanish speaking motorist, German Marquez, who was suspected of driving under the influence after being involved in a two-car accident. The police officer noticed Marquez smelled of alcohol and seemed unstable on his feet, and instructed him to perform field sobriety tests. After failing to understand how to perform the tests, Marquez was arrested. While at the police station, Marquez was read in English an eleven (11) paragraph DWI refusal standard statement, required under the informed consent statute (N.J.S.A. 39:40-50.2), informing him of the legal requirement to submit a breath sample and the associated consequences of refusal. Marquez responded in Spanish that he did not understand. After failing to follow the police officer's pantomimed instruction of how to use the breathalyzer machine, Marquez was charged with DWI (N.J.S.A. 39:4-50, refusing to submit to a breath test (N.J.S.A. 39:4-50.4a), and careless driving (N.J.S.A. 39:4-97).

Marquez challenged the refusal violation and conceded that there was credible evidence of the DWI offense. The basis of Marquez's argument challenging the refusal violation was that the DWI standard statement should have been read to him in Spanish. Although the Court found that no statute requires the DWI standard statement to be read in a language other than English, the Court reversed Marquez's refusal conviction. The Court reasoned that while the implied consent statute (N.J.S.A. 39:4-50.2(e)) requires the person arrested to be informed of the consequences of refusing to submit to a breath test, that person could not have been "informed" if the standard statement was not read in a language the person could understand.

Moreover, it remains that an inability to understand the legal consequences of refusing a breathalyzer due to drunkenness cannot be a defense to a refusal charge. The only defense to such a charge, after this Court's decision, is a police officer's failure to read a DWI standard statement in a language the driver is able to understand.

In its decision, the Court also recommended that the Motor Vehicle Commission consider making available a translated DWI standard statement in other prevalent languages. The State Attorney General's office is most likely hard at work translating the DWI standard statement into as many languages as possible to be distributed to all law enforcement agencies in New Jersey. With today's technology it would seem that in the near future the DWI standard statement could be read to a driver from an audio pre-recording of the statement that is broadcast from the police officers dispatch radio. The Motor Vehicle Commission may also want to consider adding a letter on each driver's license signifying the prevalent language of the driver so the police officer knows what language the person understands.

If you have been charged with drunk driving or refusal to submit to the chemical breath test you need an experienced criminal defense DWI lawyer to protect your rights. The attorney you retain should know the changes to the drunk driving laws in New Jersey and take the time to thoroughly review your case to determine if the police made a mistake that can allow for you to retain your driving privileges.

SOURCES:
State v. Marquez, A-35 September Term 2009, Supreme Court of New Jersey

N.J.S.A. 39:4-50

N.J.S.A. 39:4-50.4a

N.J.S.A. 39:4-50.2

New Jersey Division of Motor Vehicle Standard Statement for Operators of a Motor Vehicle

Disorderly conduct charges are among the most common offenses written by law enforcement during the summer months in Belmar of Monmouth County and Seaside Heights of Ocean County, New Jersey. During the summers months, police officers at the Jersey Shore regularly issue these tickets to young adults typically due to rowdy or drunken behavior in overcrowded public areas such as bars, nightclubs, at the beach, on the boardwalk and on the street.

In Belmar and Lake Como visitors to Bar Anticipation, D'Jais, 507 Main, Connolly Station, Jack's Tavern and the Boathouse Bar & Grill are often charged with disorderly conduct after exhibiting disruptive behavior. In Seaside Heights, patrons of Club XS, Karma Night Club, Klee's Bar & Grill, Bamboo Bar, Saw Mill, and the Beachcomber frequently receive charges of disorderly conduct after having too much alcohol and they begin to put others in physical danger. The number of disorderly conduct charges is also on the rise in towns like Point Pleasant Beach and Manasquan, where many young adults flood in to enjoy the summer festivities.

Engaging in improper behavior or offensive language can result in disorderly conduct, which constitutes a petty disorderly persons offense. For improper behavior to be the basis of a disorderly conduct charge, an individual must threaten or engage in violent behavior, or create a risk of physical danger within a public place. Alternatively, offensive language can be the basis of disorderly conduct when engaging in unreasonably loud and abusive language within a public place so that others may hear. N.J.S.A. 2C:33-2.

Disorderly conduct is a petty disorderly persons offense punishable by a fine up to $500, jail time of up to 30 days, possible probation, other court and processing fees, and you will have an arrest record. N.J.S.A. 2C:43-8, N.J.S.A. 2C:43-3.

If you are charged with disorderly conduct, you should contact a local criminal defense attorney who may assist you with reducing or dismissing the penalties associated with the petty disorderly persons offense under N.J.S.A. 2C:33-2. If you are charged with such an offense within Monmouth County or Ocean County, it is important to retain an attorney who regularly represents clients in municipal courts within these counties.

Keep in mind that if you happen to become involved in a physical or verbal altercation at a bar or public place, police officers will unlikely be willing to consider your excuses when administering a summons or complaint for disorderly conduct. However, maintaining a polite and calm demeanor when near or conversing with law enforcement officers may be the best way to avoid a disorderly conduct charge.

SOURCE:
N.J.S.A. 2C:33-2
N.J.S.A. 2C:43-8
N.J.S.A. 2C:43-3

It is common knowledge that operating a motor vehicle while intoxicated can be a regrettable and expensive mistake. However, drivers in Ocean County and Monmouth County who are under the legal drinking age of 21 are still taking the risk of driving after they've had a drink or two. Besides the risk of being in an automobile accident and causing injury or death to you or another, there is the risk of being arrested for driving while intoxicated (DWI).

Even though these young drivers under 21 may not have drank enough to be charged with a DWI under New Jersey Statute 39:4-50, they are still violating the law by having any alcohol in their system; such a violation becomes worse for these under age when the operation of a vehicle becomes a factor and they are arrested for what is commonly known as a "baby drunk", New Jersey Statute 39:4-50.14.

As your summer heats up at the Jersey Shore, you may find yourself contemplating how to get home from a friend's party. You should realize that, being under the legal drinking age of 21, driving should not be an option if you have consumed any alcohol.

Imagine: You decide to risk driving after having just one beer and a patrol car pulls you over (police officers commonly single out young drivers for routine traffic stops). Being arrested and losing your license could hinge on the chance that a police officer thinks you smell suspiciously like alcohol; that chance would not likely be in your favor after spending a few hours around your friends while they drank and spilled beer.

A parent's advice of "do as I say, not as I do," can be more valuable than you may like to admit if you apply it to an underage drinking and driving scenario. Although not recommended, it is possible for an adult above the legal drinking age to have an alcoholic beverage or two and be able to drive without breaking the law. Of course, the legal limit of blood alcohol concentration for those adults is 0.08%. However, that is not the case for those of you who are under the legal drinking age.

If you operate a vehicle under the age of 21 with a blood alcohol concentration between 0.01% and 0.08%, you can be charged for violating the New Jersey motor vehicle law. New Jersey Statute 39:4-50.14, a motor vehicle offense, states that if you are driving a motor vehicle under the age of 21 and have a blood alcohol concentration between 0.01% and 0.08%, you will lose your privilege to drive in New Jersey for 30 to 90 days and will be required to perform community service for 15 to 30 days (90-180 hours, as one day = 6 hours). Additionally, you will be required to participate in an alcohol education and driving safety program (known as IDRC (Intoxicated Driver Resource Center) and pay court costs of $33.00.

Even if you think you're safe to drive since you've only had one drink, remember that the risk of being caught is not worth the chance. If a police officer suspects that you have been drinking and driving while under age, he could request to administer a breathalyzer. At this point, you can cross your fingers and hope that your breath sample does not have any traces of alcohol. Alternatively, your refusal to submit to a breath sample will result in losing your driver's license for 7 months to one year, assuming that the police officer did have reasonable grounds to believe that you had been drinking. See New Jersey Statutes 39:4-50.4a.

If you are charged with underage DWI in Ocean County or Monmouth County, New Jersey, regardless of your decision to submit to or refuse a breathalyzer, it is important to retain a local criminal defense attorney who has experience defending alcohol related driving offenses to protect your rights and work to resolve your case.

Sources:
New Jersey Statute 39:4-50
New Jersey Statute 39:4-50.14
New Jersey Statute 39:4-50.4a

If you are driving with a probationary driver's license in New Jersey, you have more incentive to drive safely than those with a basic driver's license. A basic driver's license is a driver's license without any restrictions that you can receive upon reaching the age of 18. Driving safety has been a concern that has become more apparent due to inexperienced drivers operating vehicles with probationary driver's licenses. A probationary driver's license is a license you can receive after turning 17 that is subject to several restrictions under New Jersey motor vehicle laws, such as passenger restrictions and hours of operation. See New Jersey Statute 39:3-13.4. However, you may not know that other regulations will apply if you are charged with a motor vehicle violation that carries penalty points while driving with a probationary driver's license.

Under New Jersey Statute 39:3-13.4, if you are driving with a probationary license and you receive more than two motor vehicle points for one traffic violation, you will be required to complete a driving safety program of more than four hours in addition to any other penalties associated with the offense. Furthermore, failure to complete that program or any subsequent motor vehicle violation convictions will result in a three month suspension of your probationary license and a suspension or postponement of your eligibility to receive your basic driver's license. In essence, it is easier to lose your probationary driver's license due to motor vehicle violations than if you had a basic driver's license.

Young probationary drivers may still disregard the importance of safe and careful driving even when considering the possibility of having their license suspended. A common misconception believed by probationary drivers is that they have the ability to plea bargain, or reduce, their traffic offenses down to a no-point ticket.

The New Jersey Attorney General issued a directive in September 2008, to help ensure the safety of other motorists from the carelessness of probationary drivers. See Attorney General Directive Prohibiting Municipal Court Plea Offers to "No Point" Violations for Graduated Drivers Licensees. This directive prevents municipal prosecutors from offering or accepting any plea agreement that lowers the penalty point assessment to no points for a motor vehicle offense when committed by a probationary driver. In effect, if you receive a traffic ticket that carries points while driving on a probationary license, you will most likely not be able to avoid the assessment of the points.

Although you are likely to receive some motor vehicle penalty points as a probationary driver, you should consult with an experienced criminal defense attorney who may be able to get your charges dismissed or obtain a plea agreement for a charge that provides for the minimum amount of penalty points based on the facts and circumstances of your matter.

It is important to realize that drivers with probationary licenses are treated differently under the law than those with basic driver's licenses. Young and inexperienced drivers are given probationary licenses for a reason; learning to drive safely and developing your driving skills takes time and practice. Keep in mind that driving is a privilege that can be taken away from you, especially if you fail to prove yourself as a capable driver worthy of a basic driver's license.

Sources:

New Jersey Statute 39:3-13.4
Attorney General Directive Prohibiting Municipal Court Plea Offers to "No Point" Violations for Graduated Drivers Licensees dated September 17, 2008

Some realities many young summer enthusiasts may not be aware of are the consequences related to underage alcohol-related offenses. As college students and others under the legal drinking age celebrate their summer, many are sure to have a sour taste in their mouth after being caught consuming alcohol illegally. Underage drinking charges are prevalent within Ocean and Monmouth County, especially in towns where popular bars and nightclubs are located, such as in Belmar, Lake Como, Seaside Park, Seaside Heights and Point Pleasant Beach.

New Jersey Statute 2C:33-15 states the penalties associated with underage possession or consumption of alcohol. As many may not know, simply possessing alcohol while underage can carry the same penalties as underage consumption of alcohol. If you are caught drinking or possessing alcohol while under the legal age in any public place or school, you can be charged with a disorderly persons offense and fined no less than $500. The maximum fine for a disorderly persons offense is $1,000.00. The court may also require you to participate in an alcohol education or treatment program as an additional penalty.

If the offense is committed in a motor vehicle, the Court could suspend or postpone for six months your driver's license. For example, you are transporting alcohol from a friends house to your house for a late night party and you are pulled over for a motor vehicle violation. The police officer notices the alcohol in your back seat in plain view. After looking at your driver's license he notices you are under 21. You now are receiving a motor vehicle summons and a summons for underage possession of alcohol.

Consider the consequences of having your driver's license suspended for six months. How will you get to work during the summer? How will you get to school in the fall? How much fun will it be waiting to get picked up by a friend?

In 2009 the law changed, in the interests of protecting the welfare of those at risk of alcohol poisoning, some circumstances do exist where you can avoid being charged under New Jersey Statute 2C:33-15 in cases of emergency. So please, do not hesitate to contact 9-1-1 if you or another underage person is in need of medical assistance due to alcohol consumption. An underage person who calls 9-1-1 for medical assistance will be immune from the above mentioned charges. Additionally, up to two other underage drinkers will be immune from such charges if they contact 9-1-1 for another in need of medical assistance.

You should contact an experienced criminal defense attorney if you have been charged with underage possession or consumption of alcohol. Obtaining an attorney in these types of matters is important given the penalties. You do not want to loss your driver's license for six months and have the remainder of your summer ruined. An experienced criminal attorney may be able to provide a defense to your matter given the specific facts and circumstance that allowed the police to arrest you.

It's great having fun during the summer, but important to remember that drinking or possessing alcohol while under the age of 21 is illegal and could cause you to have an arrest record.

Source:

New Jersey Statute 2C:33-15

As the summer approaches at the Jersey Shore, locals and visitors head to the beach for fun in the sun. On occasion a great day at the beach may turn into a terrible day or night at one of the local police stations in Monmouth County or Ocean County when things get a little out of hand.

Disorderly Conduct is a common offense that is charged at the Jersey Shore. The police use the charge of disorderly conduct as a "catch all" charge. Anyone that the police believe to be causing danger to others may be charged with disorderly conduct.

The basis of the charge results from various circumstances such as causing a public inconvenience, annoyance or alarm, or engaging in reckless, threatening or violent behavior. New Jersey Statute 2C:33-2.

You may be charged with disorderly conduct if you do not cooperate with the police, engage in a reckless act by throwing an object at a person while leaving a nightclub, yelling obscenities while walking away from an argument, threatening violence to others, or basically acting in a manner that is out of the ordinary for a situation.

Disorderly conduct is a petty disorderly persons offense that can result in a sentence of 30 days in jail, a fine of up to $500.00, other court costs and mandatory penalties up to $164.00, possible restitution to the victim and a term of probation.

If you are charged with disorderly conduct, it is important to retain a local criminal defense attorney, one that frequently represents individuals facing allegations of disorderly conduct in municipal courts within Monmouth County and Ocean County, New Jersey. A local attorney will be familiar with the location of the incident and will also be familiar with the Judge, prosecutor, and police department which can be vital in resolving your matter through the negotiation of a plea agreement to a downgraded charge.

Beware of disorderly conduct at the Jersey Shore!!

On April 12, 2010, the Superior Court of New Jersey, Appellate Division, decided the case of State v. Germaine A. Handy, Docket No. A-1838-07T4. The Defendant, Germaine A. Handy, appealed after being sentenced by the Superior Court of New Jersey, Law Division, Cumberland County, based on the trial judge's decision denying his motion to suppress evidence found during the search incident to Handy's arrest because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstance even though the conduct of the arresting officer himself was reasonable. The Appellate Division ruled that the motion to suppress should have been granted.

The facts of the case involved the defendant being stopped for violating a no riding a bicycle on the sidewalk city ordinance in Millville, New Jersey. The police officers called the dispatcher to check for outstanding warrants. Handy told the police officer his name, which he spelled, and date of birth of March 18, 1974. The dispatcher reported back to the police that Handy had an outstanding warrant. During the search incident to arrest, the police officer discovered crack cocaine and marijuana. After the arrest, the dispatcher advised the police officer there was a discrepancy as to the date of birth on the warrant. Upon return to the police station to verify the warrant, the police officer also found out the first name on the warrant was spelled different than the defendants. The arrest warrant was for a "Jermaine O. Handy" date of birth March 14, 1972 address of Los Angeles, CA.

The basis of the defendant's appeal was that the dispatcher's unreasonable actions should have resulted in the suppression of the drugs found because the exclusionary rule applies when a police dispatcher's actions result in an unreasonable search or seizure in violation of the U.S. Constitution, Amendments IV and XIV, and New Jersey Constitution Article I, Section 10.

The exclusionary rule operates to preclude prosecutorial use of evidence obtained from unlawful searches and seizures. The exclusionary rule does not apply to all instances where mistakes are made in executing a warrant. If the police officer's actions in executing a warrant are reasonable, there is no constitutional violation and thus no need to consider the availability of a good faith exception to the exclusionary rule.

In this case, the police dispatchers conduct was unreasonable. The dispatcher inaccurately reported to the police offier in the field that there was an active warrant for the defendant. If the citizens' right to be free from unreasonable search and seizure is to be vindicated, then the exclusionary rule must be applied beyond the officer in the field and to the police employee who acts unreasonably in supplying critical, but inaccurate or incomplete, information under circumstances such as those in this case.

This case will have an impact on future criminal defense and law enforcement procedures. An experienced criminal defense attorney should always review any available dispatcher logs and report print outs for possible errors. Law enforcement agencies will require more training for police dispatchers to avoid errors. A dispatcher could also be called as a witness in a suppression hearing if the arrest and search in a case is based on information from the dispatcher. Advances in technology should avoid any dispatcher error if the dispatcher can electronicially send to the law enforcement officer in the field the documentation to be reviewed.

Sources:

State v. Handy, Superior Court of New Jersey-Appellate Division, Docket No. A-1838-07T4, published opinion, decided April 12, 2010.

Imagine this common scenario:

You and your significant other (husband, wife, boyfriend, girlfriend) plan a night out with friends at a local bar or restaurant. You take the car that is registered in your name but plan on your significant other driving the car home because he or she will only have one or two drinks. You have a great night. You hand him/her the keys for the drive home because you know you had more than a few drinks. You are not sure how much your significant other had to drink, but you are pretty sure she is not drunk.

Within the first mile of leaving the bar or restaurant you see the flashing lights of the police car behind you signaling for the driver to pull to the side of the road (since the police are always waiting on the road down the street from the bar). The police officer approaches the car and advises the driver that she was speeding or not maintaining your lane or one of the other hundred reasons to pull you over.

Before you blink, you are both in the police station being charged with driving while intoxicated. N.J.S.A. 39:4-50(a). After being picked up by a relative, you wake up the next morning asking what happened and how can both of us be charged with DWI? Only one of us was driving?

The answer is: The New Jersey driving while intoxicated statute has a provision that provides that anyone that "permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood shall be subject" to the penalties under the driving while intoxicated statute. This statute is commonly known as the "allowing DWI statute."

The consequences of two adults in the same household being charged with DWI can be severe. You will have to pay double for your day in court: two defense attorneys, two sets of fines and penalties if you plead guilty or are found guilty. If guilty, you will both loss your driver's license for a minimum of three months. See N.J.S.A. 39:4-50(a) for a full list of the penalties for driving while intoxicated in New Jersey.

Consider the day to day consequences. How will you get to and from work? You cannot drive the car on a revoked license and risk further license suspension or possible jail time. Who will drive your children to school, sports' practices and games? Who will drive you to the grocery store? If you live in Ocean County or Monmouth County, New Jersey driving is a necessity for daily living.

If you face this situation it is important to hire an experienced criminal lawyer to defend your case. There are numerous ways to defend an allowing DWI charge. First, your allowing DWI case and the driver's DWI case should be handled by two separate criminal attorneys. There is a conflict of interest for one attorney to handle both cases as you may different defenses that could adversely affect the others case. Second, the criminal lawyers will decide if the cases should be tried separately or jointly. There are many evidential considerations in making this decision.

The State must prove the following elements in an allowing charge: (1) operation of a motor vehicle, (2) driver is under the influence or there is a per se violation for having a blood alcohol content (BAC) of 0.08% or greater, (3) the defendant permitted operation by another person purposefully and knowing. This third element is determined by the specific set of facts and circumstances of a case. Did the owner of the car knew or should have known of the driver's intoxication? This is determined by an objective standard; meaning, that a reasonable defendant knew or should have known from the circumstances the driver was drunk.

Please avoid this scenario by having a designated driver or take a taxi home.

SOURCES
N.J.S.A. 39:4-50

New Jersey Drunk Driving Law, 2009 Edition, Robert Ramsey, Chapter 11, Allowing Intoxicated Operation.

Ocean County and Monmouth County, New Jersey have yet to see a publicized case regarding the recent "sexting" phenomenon. "Sexting" has been defined as sending sexually suggestive messages or images to another person via a cell phone, or posting suggestive messages or images on social network websites such as Facebook and Myspace.

nj.com article and Miller v. Mitchell case

Northern New Jersey has seen two publicized cases in Glen Rock and Clifton, both involving 14-year-old girls. Both cases were not prosecuted. In the Glen Rock case the school district held assemblies on cyber awareness for middle school and high school students. In the Clifton case, the girl caught sexting was ordered to complete six (6) months of counseling.

LINK to nj.com article

The most publicized legal case in the mid-atlantic states occurred in Wyoming County, Pennsylvania. This case reached the United States Court of Appeals for the Third Circuit. The teens suspected of "sexting" were given a choice of either attending an education program designed by the District Attorney or face felony child pornography charges. The District Attorney considered the pictures transmitted by the two girls provocative. The teens' parents brought suit to enjoin the District Attorney from bringing criminal charges in retaliation for their refusal to attend the education program. The Third Circuit Court affirmed that the teens were entitle to preliminary injunctive relief because the District Attorney violated the teens' First Amendment right to free expression to appear in two photographs, freedom from compelled speech by being required to explain their wrong actions in an essay, and the parents' Fourteenth Amendment substantive due process right was violated to allow them to direct their children's upbringing, by retaliating against them with criminal prosecution because they failed to attend the education program.

Miller v. Mitchell case

There are a number of New Jersey criminal law statutes that an individual could violate by committing an act of "sexting." The most serious would be distribution of child pornography. For example, someone receiving a photograph on a cell phone and then forwarding it to other cell phones could be in violation of this statute. Another charge would be possession of child pornography. Other charges that could be prosecuted for "sexting" are endangering the welfare of a child, harassment, stalking, and possibly domestic violence. An experienced criminal defense attorney will have to fully evaluate each set of circumstances presented by the client to determine how law enforcement obtained the "sexting" material that led to criminal charges to best defend a client through a motion to suppress evidence or an entrapment argument.

It is likely that in the near future the State of New Jersey legislature will pass new legislation regarding "sexting" as more teens and young adults continue this practice. Schools will have to develop new education programs on "sexting" along with public interest advertisements which can already be seen on television. Law enforcement is likely to take these cases more seriously when circumstance present a juvenile selling photographs of a fellow juvenile to an adult for child pornography distribution. With the ever evolving technology of cellular phones and mini-computers the laws regarding "sexting" will be changing frequently in the near future.

SOURCES

nj.com "The Sexting Generation" by Peggy O'Crowley, August 13, 2009, Inside Jersey.

Miller v. Mitchell, U.S. Court of Appeals for 3rd Circuit, Case No. 09-2144, opinion filed March 17, 2010.

The New Jersey driving while intoxicated and refusal to submit to the breath test laws changed on January 14, 2010. People convicted of driving while intoxicated and refusal to submit to the breath test are now required to install an ignition interlock device on their motor vehicle and are not allowed to drive any motor vehicle that does not have an ignition interlock device. The previous law allowed for the suspension of the registration privileges of the person as an alternative to the installation of the ignition interlock device.

For a first driving while intoxicated (DUI) offense, the municipal court judge has the discretion when the blood alcohol content (BAC) reading is less than 0.15% to order the installation of the interlock device for six months to one year upon restoration of your driver's license after your license suspension is completed. This is the only exception to the installation of the ignition interlock device. The use of the ignition interlock device would begin after the driver's license suspension period is completed.

For a first driving while intoxicated offense for a BAC 0.15% or greater there is a mandatory installation of an ignition interlock device during the driver's license suspension and for 6 months to 1 year following restoration of the person's driver's license.

For a second driving while intoxicated offense there is a mandatory installation of an ignition interlock device during the driver's license suspension and for 1 to 3 years following the restoration of the person's driver's license.

For a third driving while intoxicated offense there is a mandatory installation of an ignition interlock device during the driver's license suspension and for 1 to 3 years following restoration of the person's driver's license.

For a first refusal to submit to the breath test offense there is a mandatory installation of an ignition interlock devise during the driver's license suspension and for 6 months to 1 year following restoration of the person's driver's license.

For a second or third refusal to submit to the breath test offense there is a mandatory installation of an ignition interlock device during the driver's license suspension and for 1 to 3 years following restoration of the person's driver's license.

An ignition interlock device is installed in your motor vehicle and works by requiring a breath sample prior to starting a motor vehicle and periodically as the motor vehicle is being driven. If the breath sample provided contains an alcohol level below the acceptable threshold, the vehicle will be allowed to operate. The device is attached to your vehicle with a built-in Breathalyzer and prevents the vehicle from starting if your BAC exceeds 0.05%. There are currently seven companies that are approved ignition interlock device manufacturers in New Jersey. If the court sentences you to get an ignition interlock device, you will receive a notice of suspension from the New Jersey Motor Vehicle Commission with instructions on how to obtain the device. If you fail to have an ignition interlock device installed when ordered by a judge it could result in an additional one year driving privilege suspension.

You pay for the installation of the ignition interlock device, a monthly leasing fee and a maintenance fee. There is also a maintenance fee for the device as the device must be downloaded every sixty (60) days by a technician for filing with the Motor Vehicle Commission. The device can be paid for monthly. One company approved by the New Jersey Motor Vehicle Commission charges $75.00 to $125.00 per month. People in financial difficulty may qualify for a reduced monthly leasing fee. N.J.S.A. 39:4-50.17a.

It is important when faced with a driving while intoxicated charge or refusal to submit to a breath test charge that you have an experienced defense attorney representing your interests and working for you to obtain the minimum penalties based on the new laws.

Sources: N.J.S.A. 39:4-50 New Jersey Driving While Intoxicated statute
N.J.S.A. 39:4-50.2 Consent to taking samples of breath statute
N.J.S.A. 39:4-50.4a New Jersey revocation for refusal to submit to breath test penalties statute
N.J.S.A. 39:4-50.16 Ignition Interlock device statute
N.J.S.A. 39:4-50.17 Sentencing drunk driving offenders statute
N.J.S.A. 39:4-50.17a Monthly leasing fee for installation of ignition interlock device statute

The summer is nearing at the New Jersey shore in Ocean and Monmouth Counties and the laws regarding pedestrian safety have gotten tougher. Drivers and pedestrians should be more careful when visiting the towns of Belmar, Ocean Grove, Point Pleasant Beach, Mantoloking, Seaside Park, Seaside Heights, and the towns of Long Beach Island.

As of April 1, 2010, drivers must come to a complete stop and remain stopped for a pedestrian crossing a roadway within a marked crosswalk or unmarked crosswalk when the pedestrian is upon, or within one lane of, the halfway of the road upon which the vehicle is traveling or onto which it is turning. New Jersey Statute 39:4-32 and New Jersey State 39:4-36.

The previously law only required drivers to yield to pedestrians in crosswalks. Now the drivers must stop and remained stopped on, or within a lane of, the half of the roadway on which the vehicle is traveling.

New Jersey Statute 39:4-36 has also changed regarding the penalties. A fine shall be imposed in the municipal court of $200.00, previously the fine was $100. Additionally, the driver will be assessed two (2) points on their driver's license for failing to stop for a pedestrian. See N.J.A.C. 13:19-10.1. The Municipal Court Judge also has discretion to order community service up to 15 days. If the violation results in serious injury to the pedestrian, the fine could be up to $500.00, up to 25 days in jail or a license suspension up to six (6) months, or both.

The new law also has a provision that a collision between a vehicle and a pedestrian within a marked crosswalk, or at an unmarked crosswalk at an intersection, shall be a permissive inference that the driver did not exercise due care for the safety of the pedestrian. This provision could have a tremendous impact on personal injury lawsuits involving pedestrians injured in motor vehicle accidents. It will be interesting to see if this part of the law is challenged as it relates to New Jersey Court Rule 7:6-2(a)(1), allowing a defendant to plead guilty with a reservation that the guilty plea will be non-evidential in any civil proceedings (commonly known as "a civil reservation").

The law also imposes a duty on pedestrians to stay at the curb or place of safety and not to walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield or stop. When a pedestrian is not in a marked crosswalk or not within an unmarked crosswalk at an intersection they should yield the right-of-way to all vehicles upon the roadway. Pedestrians could also be fined up to $200.00. New Jersey Statute 39:4-36.

This law is of particular importance to drivers that will be traveling down to the New Jersey shore for the summer where there are numerous marked crosswalks and pedestrians making their way to the boardwalks, beaches and bars. Pedestrians should also take care to cross at crosswalks. Receiving a fine of $200.00 for violating these laws could make for an expensive day of sun and fun at the New Jersey shore.

Sources: Asbury Park Press (app.com) Associated Press, March 31, 2010.
New Jersey Statute 39:4-32
New Jersey Statute 39:4-36
New Jersey Administrative Code 13:19-10.1
New Jersey Court Rule 7:6-2(a)(1)