New Jersey Criminal Lawyers Blog

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 during the period of license suspension and 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.

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