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. " »

In the wake of Columbus Day festivities in Seaside Heights, New Jersey, patrons to the events might find themselves in trouble with the law. Anytime there is a large gathering of people for a multi-day event in close proximity to an abundant amount of bars, the Seaside Heights Police are usually out in full force. The three-day Italian Festival brought a lot of fun, a lot of good food, and unfortunately, patrons may have been arrested for common disorderly persons offenses in Seaside Heights, municipal ordinance violations in Seaside Heights, motor vehicle violations in Seaside Heights and in some cases, indictable criminal offenses in Seaside Heights.

Disorderly persons offenses in Seaside Heights are commonly written and are a general category of offenses that are punishable by up to a $1,000 fine, payments of restitution, up to 6 months in jail, and other fines and penalties. If you were arrested for a disorderly persons charge in Seaside Heights, it is important to realize that you may have options. Contact an experienced Seaside Heights Criminal Defense Attorney to discuss your case. Some commonly written 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).

Very common at such large events are Underage Drinking charges (N.J.S. 2C: 33-15) and Fake ID charges (N.J.S. 33:1-81). Underage drinking charges carry a mandatory fine of $500. If the underage drinkers are found consuming alcohol in a motor vehicle they could face a suspension of their drivers license for up to 6 months. Fake ID charges are also quite serious and violators could be looking at the same penalties. Conviction of both could lead to a loss of license for 6 months and fines of no less than $1,000. If you have been charged with Underage Drinking, Fake ID, or any other disorderly persons offense, call an experienced New Jersey Criminal Defense Attorney to discuss your case and protect your rights.

In addition to disorderly persons offenses, Seaside Heights Police Officers often write tickets for moving violations. Motor vehicle violations can also carry serious penalties including points assessed to your driver's license, fines, or suspension of your driver's license. Commonly written motor vehicle violations 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). DWI, DUI, and Refusal charges are very serious motor vehicle violations in New Jersey. Penalties for a DWI, DUI, or Refusal conviction can include jail-time, loss of your driver's license, heavy fines, mandatory participation in an Intoxicated Driver Resource Center (IDRC) program, installation of an Ignition Interlock Device and additional fines and penalties.

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

If you have been arrested for any disorderly persons offense in Brick, drunk driving in Brick, or have committed a more serious crime in Brick 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 Brick 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 can result in fines, jail-time, and in some cases payment of restitution. There are alternatives available to pleading guilty and defenses that can be argued.

In 2010, there were an estimated 4,000 motor vehicle moving violations in Brick. Some common moving violations in Brick 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 over 300 DWI, DUI and refusals in Brick in 2010. Talk to an experienced Brick criminal lawyer about the circumstances of your motor vehicle violation or drunk driving charge before going to court.

Continue reading "Arrested In Brick? Call An Experienced Brick Criminal Defense Attorney. " »

New Jersey law enforcement officers, including local police officers and State Troopers, have a goal of preventing drunk driving in New Jersey during the last days of summer. The New Jersey Division of Highway Traffic Safety is utilizing the Drunk Driving- Over the Limit, Under Arrest and the Drive Sober or Get Pulled Over campaigns. From August 19 through September 5 many local and state law enforcement officers will be conducting field sobriety checkpoints.

The U.S. Supreme Court in 1990 (Michigan v. Sitz) upheld the constitutionality of sobriety checkpoints. The Court held that the interest in reducing alcohol-impaired driving was sufficient to justify the brief intrusion of a sobriety checkpoint. If conducted properly, sobriety checkpoints do not constitute illegal search and seizure in most states. Click here for further information of sobriety checkpoints.

Penalties for a first offense DWI in New Jersey can include loss of your driver's license from 7 months to 1 year, a fine of up to $500.00, 12 to 48 hours of detainment and/or counseling as prescribed by the Intoxicated Driver Resource Center, up to 30 days in jail, mandatory installation of an Ignition Interlock Device, and other fines and penalties. An experienced New Jersey DWI criminal defense attorney may uncover possible defenses to your case to minimize the penalties you are facing.

Due to the fact that no New Jersey DWI, New Jersey DUI, or New Jersey refusal case has the same set of facts, an experienced New Jersey DWI attorney, will take the time to discuss and review with you:
• The circumstances that permitted the stop;
• The tests the police conducted to determine if you were intoxicated;
• The specific results of the breathalyzer, Alcotest®, or blood test that the State will use against you;
• The adherence by the police to the strict procedures necessary to sustain a valid blood alcohol content (BAC) reading;
• The possible fines and penalties you may be sentenced to if convicted of a New Jersey DWI, DUI, or refusal;
• The possible suspension of your New Jersey or other state's driver's license;
• The possible installation of an ignition interlock device in your vehicle;
• The possibility of being sentenced to jail;
• The determination of whether the use of expert witnesses would be a benefit in defending your case;
• The review of all possible defenses and mitigating factors to obtain the best result.

Continue reading "New Jersey Drunk Driving Crackdown! If You Are Arrested For Drunking Driving In New Jersey Call An Experienced NJ DWI Lawyer." »