New Jersey Criminal Lawyers Blog

In a recent Superior Court of New Jersey Appellate Division case (State v. Zeikel), the question of sentencing for repeat offenders of New Jersey DWI laws was addressed. More specifically, the Appellate Division had to decide if two prior DWAI (Driving While Ability Impaired) charges from New York State had any bearing or no bearing at all on the enhanced sentencing as a repeat DWI offender in New Jersey. The Appellant, Jeffrey Zeikel argued that they should not have any bearing on his current New Jersey DWI sentencing because the New York DWAI charge is not "substantially similar" to the New Jersey DWI, DUI, Refusal statute. This is a requirement under N.J.S.A. 39:4-50 which reads: "A conviction of a violation of a law of substantially similar nature in another jurisdiction...shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration (BAC) of less than 0.08%."

In defining the statutory language of "substantially similar" the court ultimately ruled that a New York State DWAI is similar to a New Jersey DWI. The statutory language places the burden of proving that it is NOT "substantially similar" on the defendant. In other words, Mr. Zeikel needed to show by "clear and convincing evidence" that the New York DWAI conviction was based exclusively on a violation that proscribed a BAC of less than 0.08%. In this case, Mr. Zeikel could not present the appropriate evidence as the older New York DWAI's occurred in the 1980's. Due to their age, the proper New York authority no longer had an evidentiary record of them. Simply, if the defendant cannot introduce evidentiary proof (whether it is available or not), the prior convictions will serve to enhance the punishment of the current New Jersey DWI charge.

The court also relied on previous holdings on the same issue, which was quite damaging to the defendant's case. According to Div. of Motor Vehicles v. Lawrence, the court held that a New York DWAI was "of a substantially similar nature as a New Jersey DWI conviction," and in comparing the language and policy goals of the New York and New Jersey statutes, the court concluded that, " both laws deal with alcohol related offenses and are aimed to deter and punish drunk drivers." Essentially, the New Jersey court gave full faith and credit to the New York DWAI statute when it decided to use a prior conviction under it for enhancement purposes.

Continue reading "Did You Receive A DWAI In New York Or A Similar Charge In Another State? If So, It Could Be Used To Enhance The Penalties Of Your Current New Jersey DWI Conviction! Discuss Your Case With An Experienced NJ DWI Lawyer. " »

In a recent United States Supreme Court case (Bullcoming v. New Mexico), a defendant's DWI conviction was reversed and remanded on Constitutional grounds. The opinion of the highest court in the land is of course binding on all inferior courts in the United States. The principle at issue was a defendant's constitutional right to confront witnesses that present testimony or evidence used to prove his guilt. The confrontation clause is in place so that a defendant may confront his accusers so as to ensure a fair trial.

The underlying issue at question was whether or not a lab report showing a defendant's blood alcohol content (BAC) may be admitted into evidence during DWI proceedings without corroborating testimony by the analyst who actually prepared the report. The government attempted to submit in person testimony of another analyst who worked at the particular lab but did not prepare the defendant's actual report. This was problematic for the defendant and the Supreme Court. Since the analyst who was present at the trial could not answer specific questions regarding the preparation of the defendant's lab report, the court ruled that the admittance of the lab report itself was violative of the Federal Rules of Evidence and the Confrontation Clause.

The court also ruled that report was purely testimonial in nature. When a report is testimonial, it can mean that the report was specifically prepared in preparation of litigation. Here, it is clear that the lab report (measuring blood alcohol content) was only prepared to show that the defendant was intoxicated while driving his motor vehicle. The report was in fact key evidence and essential to the case. Because the defendant could not question the analyst who prepared the report, it's validity, authenticity, and process could not be ascertained with certainty.

There are a few exceptions that would allow the report without the corroborating testimony of the analyst. If the analyst was not available to testify, the lab report could be submitted without him or her. There are very stringent standards, however, to show that he is not available to testify. Another exception could be that the defendant had an opportunity to cross-examine the analyst pre-trial (either by deposition or interrogatory).

The right to confront an accuser is a fundamental right granted under the United States Constitution and it applies in every courtroom in the United States. If you believe that you're right to confrontation has been violated, contact an experienced DWI attorney who can navigate your legal issues. It is important to obtain counsel that is knowledgeable in DWI, DUI, and Refusal proceedings in New Jersey to protect your rights.

Continue reading "Confrontation Clause of the United States Constitution Finds It's Way into DWI Proceedings Through the U.S. Supreme Court; New Jersey Courts must follow!" »

A defendant charged and convicted of a 2nd or subsequent New Jersey DWI may wish to file a Petition for Post Conviction Relief (PCR) for a number of reasons. One such reason was raised during the trial of Karen Weil (State v. Weil). Ms. Weil, plead guilty to a 3rd DWI and applied for PCR (post trial), which was subsequently denied. Post Conviction Relief in this case was requested because the defendant believed that she had sustained a "substantial denial in the conviction proceedings of [her] rights under the Constitution of the United States or the Constitution or laws of New Jersey" (R. 7:10-2) stemming from a prior (first) DWI conviction in 1994.

Defendant, Karen Weil filed a "Laurick" application for Post Conviction Relief (State v. Laurick). A defendant who has sustained a prior un-counseled DWI conviction could be entitled to a step down in the jail sentence associated with a 3rd DWI conviction. For a 3rd DWI conviction there is a mandatory jail term of not less than 180 days. If Ms. Weil's "Laurick" application were successful, she would only be required to serve a jail sentence affiliated with a 2nd offense DWI which is not less than 48 consecutive hours nor more than 90 days.

As shown by Ms. Weil's case, a step down for a Post Conviction Relief "Laurick" application is not easy. Ms. Weil claimed that she could not remember whether or not she was represented by a public defender in her 1994 DWI conviction but she specifically recalls not being represented by private counsel. Since it had been 16 years since the initial DWI conviction, the court could not provide records or court transcripts. The only information available was a copy of the back of the summons, which indicated that Ms. Weil paid a $50.00 public defender fee. The defendant argued that this information alone was not enough to establish that she was in fact represented by counsel and is entitled to relief due to the facts that all other records were not available.

The State argued that Ms. Weil needed to establish a prima facie case and the court agreed. As to the delay, New Jersey Municipal Court Rules state that there is a less than stringent five-year time limit for filing a PCR petition. Ms. Weil had in fact waited for 16 years and did not convince the court that it was not a result of her neglect.

Defendants who file a Laurick PCR application are charged with the burden of proof and must overcome a few hurdles, which the New Jersey Supreme Court has articulated in the progeny of State v. Laurick. Before getting to the two-tiered analysis of Laurick, a defendant must first prove that he or she did not receive notice of a right to counsel in a DWI proceeding. After establishing that no notice was given, the defendant must show two things: (1) unaware that he or she was entitled to counsel and (2) if the defendant was considered to be indigent (could not afford private counsel) then he must show that he would have derived a benefit from notice that he was entitled to a public defender. If the defendant was non-indigent and could afford private counsel, the defendant needs to show that the lack of notice affected the outcome of the case. Defendant, Karen Weil was not able to meet the significant burden of the test, therefore, her conviction was affirmed and no PCR was granted.

Continue reading "Significant Burden Must Be Overcome for Success on Post Conviction Relief "Laurick" Application for Prior NJ Drunk Driving Conviction. " »

It was recently reported in the Asbury Park Press that Seaside Heights police are cracking down on disorderly conduct on the Seaside Heights boardwalk and surrounding areas of the borough. If you have been arrested for any disorderly persons offense in Seaside Heights, drunk driving in Seaside Heights, or have committed a more serious crime in Seaside Heights you need an experienced New Jersey criminal defense attorney that is familiar with the location where your incident took place and will work aggressively to defend your case.

Frequently charged disorderly persons offenses in Seaside Heights include: disorderly conduct (N.J.S. 2C:33-2), trespass (N.J.S. 2C: 18-3(b)), criminal mischief (N.J.S. 2C: 17-3), simple assault (N.J.S. 2C: 12-1), fake ID (N.J.S. 2C: 28-7), underage drinking (N.J.S. 2C:33-15), possession of CDS (N.J.S. 2C:35-10), and resisting arrest (N.J.S. 2C:29-2). A conviction for a disorderly persons charge in New Jersey can result in fines, jail time, probation, community service and in some cases payment of restitution. There are alternatives available to pleading guilty and defenses that can be argued.

In 2010, there were over 900 motor vehicle moving violations in Seaside Heights. Some common moving violations in Seaside Heights include: speeding (N.J.S. 39:4-98 and N.J.S. 39:4-99), failure to yield to a traffic sign (N.J.S. 39:4-81), reckless driving (N.J.S. 39:4-96), and careless driving (N.J.S. 39:4-97). There were 120 DWI, DUI and refusals in Seaside Heights in 2010. Talk to an experienced Seaside Heights criminal lawyer about the circumstances of your motor vehicle violation or drunk driving charge before going to court.

Continue reading "Arrested in Seaside Heights? Call an Experienced Seaside Heights Criminal Defense Attorney." »

In a recent news article, Wall Township Police claim to have written two drunk driving charges within 15 minutes of each other during an early Sunday morning around 2:00 am in July. To those who are familiar with Wall Township and the surrounding towns, this is no surprise. Wall Township is nearby the summer hot spots of Point Pleasant Beach, Belmar, Brielle, Manasquan, and Sea Girt. All of these beachfront towns attract late night crowds to various bars and nightclubs during the weekends of the summer. In addition, the busy roads of Route 138, Route 35, Route 34, Route 18, and portions of the Garden State Parkway and I-195 dissect Wall Township making it nearly impossible to not travel through Wall after a night of drinking. Recent Wall drunk driving related stops have been reported on Route 34 just outside the Garden State Parkway entrance, and on Route 138 (the entrance of I-195).

DWI and DUI are serious offenses in Wall Township and all throughout New Jersey. In 2010, there were an estimated 350 DWIs in Wall. In order to be convicted of a per se DWI/DUI in Wall Township and all of New Jersey, your BAC must be 0.08% or over. For a first offense drunk driving in New Jersey, depending on your BAC level from the new Alcotest® 7110 breath testing device (0.08%-0.15% or above) you face very serious penalties.

Penalties for a first offense DWI in New Jersey include: (1) loss of your driver's license for up to a year; (2) a fine of up to $500.00 plus other fees and administrative costs; (3) up to 30 days in jail; (4) completion of a program at an Intoxicated Driver Resource Center; and (5) you may have to install an ignition interlock device into your vehicle.

Refusal in Wall Township is also a common charge. Refusal charges can be written when the alleged intoxicated motorist refuses to submit to a breath test or a blood test to determine their Blood Alcohol Content (BAC). There is a process that all Wall Township Police Officers must follow which is contained on the Division of Motor Vehicles Standard Statement. The officer must read you your rights and the law contained thereon, and ask if you will submit to a BAC test. If you refuse, the officer is then required to read an additional legal warning and ask once more. If you refuse the second time, you will be charged with a refusal. If convicted of the refusal, you may face similar penalties to those of an actual DWI. One major difference is that if convicted of refusal, you will be ordered to install an Ignition Interlock Device in your motor vehicle even if it is a first refusal. These devices will not allow you to turn on your automobile unless the device determines that there is no alcohol in your system.

Continue reading "DWI In Wall Township: Call an Experienced Wall Township DWI Attorney" »

With over 75,000 year round residents, Brick Township, New Jersey is a large municipality in Ocean County. Encompassing just over 32 square miles and containing three municipal oceanfront beaches, Brick Township is also large in size. Brick Township is close in proximity to Point Pleasant Borough, Point Pleasant Beach, Brielle, Wall Township, and Toms River. Traffic flows through Brick Township on the busy roads of Route 70, Route 88, Brick Boulevard, and a portion of the Garden State Parkway. As a result of Brick's close proximity to many beachfront towns, Brick Township saw an estimated 313 DWI, DUI, and refusal charges written by police officers in 2010.

Refusal charges have evolved in Brick Township and all throughout New Jersey from years past. Refusal in the past could be used to mitigate the penalties of DWI and DUI. If an individual knew that he was severely intoxicated, he could simply refuse, denying the police officer valid and admissible proof needed at trial for a DWI or DUI conviction. The apparent intoxicated motorist faced penalties much less severe than those of DWI and DUI per se violations.

Today, however, this is not the case. Lawmakers have moved to a stricter standard to reduce the amount of drunk drivers on New Jersey roads. Refusal charges in Brick Township and all of New Jersey carry very harsh penalties almost identical to those of per se DWI and DUI violations with the added burden of the installation of an ignition interlock device. In fact, a first refusal charge will result in the same penalties as an upper tier, first DWI or DUI conviction. Essentially, if you refuse to take a chemical test, the State presumes that you would have blown a 0.10% BAC or above as if you had in fact been tested.

If a Brick Township police officer suspects a motorist of DWI or DUI and wishes the individual to submit to a chemical test, he must read a standard statement outlining the individual's rights and obligations regarding the test. After the officer reads the lengthy statement, he must then ask the individual to submit to the chemical test. If the individual answers with a clear "no", then he/she will be charged with a refusal. If the individual replies with an ambiguous answer, the officer is then required to read an additional legal warning and ask again. If the individuals reply to the second statement is "no" or ambiguous, a refusal may then be charged. To be convicted of a refusal, the State must simply show three things: (1) that an individual was driving a motor vehicle on a public or quasi-public road; (2) that the individual appears to have driven a vehicle or intended to drive a vehicle while intoxicated; and (3) that the individual was requested to submit to a breathalyzer examination/chemical test and refused. As the law is designed, it becomes much easier for the State to convict an individual for a refusal than it is to convict for a DWI or DUI. Given the fact that the penalties are just as severe for refusal as they are for DWI and DUI, you could be making it very easy for the State to remove you from the road.

In addition to a per se refusal, you could even be charged with a refusal if you agree to submit to a chemical breath test. Since the Alcotest® 7110 breathalyzer (use of this device is mandated by the State) is a sensitive device that requires the operator to administer the test very carefully, there are many factors that can render it incapable of obtaining a reading. In order to obtain a proper BAC reading, a certain volume of air must be blown into a tube. If the proper amount is not introduced into the machine, the Alcotest® will not take a reading. Other factors such as moving the tube too quickly or failure to change the mouthpiece after each individual can invalidate a breath test. If you are being administered a breath test and are incapable of breathing the proper volume of air into the machine, you might be charged with a refusal. If there is a medical reason such as asthma or some other pulmonary disorder that you cannot blow the proper volume, evidence of such may be introduced and examined at trial. If, however, the operator or officer believes that you are not making a good-faith effort to perform the test, you could be charged with a refusal. The penalties for refusal include: loss of license for up to 1 year, fine of up to $500.00, the requirement to install an Ignition Interlock Device, program and fee requirements of an Intoxicated Driver Resource Center (IDRC), and other fines and penalties.

Continue reading "Refusal in Brick: Brick DWI Lawyer" »

Long Beach Island or LBI is a collection of six municipalities contained on an 18-mile long barrier island nestled between the Barnegat Bay and the Atlantic Ocean. The six beachfront communities include: Barnegat Light, Long Beach Township, Harvey Cedars, Surf City, Ship Bottom, and Beach Haven. The total year-round population of Long Beach Island is around 20,000. During the summer months, the population swells nearly five times to almost 100,000 and the roadways inevitably become congested.

Due to the large population explosion during the summer months and the number of activities and attractions contained on Long Beach Island, it is no surprise that LBI saw approximately 123 DWI, DUI, and refusal charges written throughout its six municipalities. DWI, DUI, and refusal charges, while not criminal, are quite serious and have long-lasting, life altering repercussions.

If you are caught operating a motor vehicle, motorcycle, or boat while under the influence of an intoxicating liquor, habit forming drug (legal or illegal), or narcotic, you will be charged with a DWI or DUI. In order to be charged, the LBI Police Officer must read a standard statement outlining your legal rights and obligations regarding DWI violation. After reading the statement the officer must ask if you will submit to a chemical test to determine your Blood Alcohol Content (BAC). If you agree to submit to the test and your answer is not ambiguous, the officer will take you to a Long Beach Island Police Station (depending on which municipality you were stopped in) where a trained officer will administer a BAC test using the Draeger Alcotest® 7110.

Since the Draeger Alcotest® 7110 device is so sensitive, New Jersey law has mandated that the officer observe you for a period of no less than 20 minutes before he asks you to breath into the machine to ensure that you have not done anything or will not do anything that may skew the results. Once you breath into the device, your BAC will be taken using both infrared and electro-chemical sensors. If the machine performed without malfunction and it takes a BAC reading of 0.08% or above, you will be charged with a per se DWI. If, however, your BAC reading is under 0.08% or the officer has not administered one, you might still be charged with a DWI.

You can be written a DWI charge if the officer believes that you were driving drunk. He may testify in court that the charge was proper because he observed you slurring words, observed the smell of alcohol, observed you staggering, or observed you fumbling while attempting to produce necessary documentation. Without a BAC reading or one below the statutory limit, the State or municipality can only charge and convict you of a first tier, first offense DWI.

If convicted of a DWI or DUI you could face the following penalties depending on your actual BAC reading and the number of previous DWI drunk driving convictions you have sustained: loss of license for up to 1 year, a $500.00 fine, other monetary penalties, up to 30 days in jail, must meet the program and fee requirements of the Intoxicated Driver Resource Center (IDRC), and could possibly be forced to install an ignition interlock device in your car.

Continue reading "LBI Drunk Driving: Long Beach Island DWI Lawyer" »

Toms River is a large municipality in Ocean County spanning almost 53 square miles. It is a main thoroughfare to many beachfront communities via Garden State Parkway interchange 82 and Route 37. Intersecting with Route 37 in Toms River are Route 166, Hooper Avenue, and Fischer Boulevard. Running parallel to Route 37 with access to the bay is Bay Avenue (County Route 571.)

During the summer months, traffic can back up for miles on Route 37 with beachgoers traveling to Seaside Park, Seaside Heights, and Island Beach State Park. At night visitors and residents can be seen heading to their favorite restaurants and bars. The surrounding municipalities of Seaside Heights and Brick Township are easily accessible from Toms River roads and are often congested on holiday weekends. Driving over the bridge to Seaside Heights could prove to be a daunting task either on the way there or on the way home, due to the fact that Toms River Police Officers will be looking to issue DWI, DUI, and Refusal charges if you have come from a night at Bamboo, Karma, or Hemmingway's.

DWI, DUI, and refusal charges are very serious although they are not considered criminal or indictable offenses. Simply put, if you are driving drunk or are operating a motor vehicle under the influence of or intoxicated by alcohol or drugs, you can be charged with a DWI or DUI. If you refuse to submit to a breath test or blood test, you will face similar penalties and will be charged with a refusal.

One way to be convicted of a DWI or DUI, is for your Blood Alcohol Content (BAC) to be determined using the Alcotest® 7110 MKIII-C instrument. The new 7110 is the only breath testing device in use by New Jersey law enforcement and is much more efficient and scientific than the breathalyzers that were previously in use. The device measures a BAC in two different ways: (1) by infrared technology, and (2) electro chemical analysis. If the Alcotest® determines that your BAC is 0.08% or above, you will be charged with a per se DWI or DUI. The penalties for DWI or DUI vary depending on your BAC reading.

It is also important to realize that you can be charged and possibly convicted of a DWI or DUI even if your BAC is below the statutory 0.08%. If a Toms River Police Officer observes any combination of psychophysical indicators that an individual is intoxicated, he could charge that individual with a first tier, first offense DWI or DUI even if the individual's BAC is below 0.08% or no reading was taken at all!

Penalties for a first offense DWI or DUI are split into three tiers. The first tier includes a BAC of between 0.08% and below 0.10%. Penalties for a first tier offense are: forfeiture of license for 3 months, a fine of up to $400.00, participation in an Intoxicated Driver Resource Center program, other fees and penalties, up to 30 days in jail, and (at the court's discretion) an ignition interlock device installed in your motor vehicle.

A second tier, first DWI or DUI is considered to be above a 0.10% but below a 0.15% and carries the following penalties: forfeiture of license for 7 months to 1 year, a $500.00 fine, participation in an Intoxicated Driver Resource Center program, other fees and penalties, up to 30 days in jail, and (at the courts discretion) the installation of an ignition interlock device in your car. A third tier, first offense DWI or DUI would include those were a reading shows a BAC of over 0.15% and penalties would include: forfeiture of license for 7 months to 1 year, a $500.00 fine, participation in an Intoxicated Driver Resource Center program, other fees and penalties, up to 30 days in jail, and mandatory installation of an ignition interlock device in your car.

If you refuse to submit to a chemical or breath test, you unfortunately face almost identical penalties due to the fact that the State, as a matter of law, equates a refusal with a per se DWI or DUI.

Continue reading "Toms River Drunk Driving: Toms River DWI Lawyer" »