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New Jersey Criminal Defense Law Blog

New Jersey Criminal Defense Law Blog

About Jonathan F. Marshall

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So far Jonathan F. Marshall has created 282 blog entries.

Acts Constituting a Refusal

There is significant case law as to what constitutes a refusal under N.J.S.A. 39:4-50.4a. A defendant who simply remains silent in the face of a police request to submit to a breathalyzer test has refused to take the test. The police have no obligation, when confronted by a defendant who remains silent when asked to submit to a breath test, to set up the machine and lead the defendant to the machine and hold the hose to his or her mouth. State v. Sherwin, 236 N.J. Super 510 (1989).

It does not take much to constitute a refusal to submit to a breath test. “Anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. The occasion is not one for debate, manuever or negotiation, but rather for a simple ‘yes’ or ‘no’ to the officer’s request.” State v. Pandoli, 109 N.J. Super 1 (1970).

In State v. Geller, 348 N.J. Super 359 (2001), the defendant failed to provide an adequate sample to five of the six attempts he made blowing into the breathalyzer machine. These actions by the defendant, coupled with his hostile, uncooperative attitude toward the arresting police was sufficient evidence of an intent to refuse to submit to the breathalyzer analysis.

By |2012-06-07T17:30:32+00:00June 7, 2012|Refusal|Comments Off on Acts Constituting a Refusal
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When does Miranda apply? Part 2

Although a police officer is under no obligation to inform a detained motorist of the right to remain silent (one of the famous Miranda rights), does a driver have the right to remain silent during a traffic stop in New Jersey? In Terry v. Ohio, the Supreme Court held that a person being detained for criminal investigation is not obligated to respond to the questions of the police. Terry v. Ohio, 392 U.S. 1 (1968). This same right applies in New Jersey. The rules of evidence provide that every natural person has a right to refuse to disclose to a law enforcement officer any matter that will incriminate him or expose him to a penalty.

There are some limited exceptions to this rule in the motor vehicle context. Motorists who are involved in motor vehicle accidents are affirmatively required to provide the police, witnesses and other parties involved in the accident certain information. This includes the driver’s name and address as well as his or her license and registration. Furthermore, the driver has a duty to report the accident to the police and to provide extensive details on the cause of the accident to the Chief administrator of the Department of Motor Vehicles (DMV). We frequently represent individuals who are charged with failure to report an accident in New Jersey which entails significant penalties.

In reality, motorists frequently make admissions, excuses, and complaints during motor vehicle stops. These admissions are noted by the law enforcement officer on the back of the summons and then repeated in municipal court where they are used against the defendant. These are considered voluntary admissions under the rules of evidence and they are therefore admissible as an exception to the hearsay rule.

By |2012-06-07T17:30:29+00:00June 7, 2012|Traffic Stops|Comments Off on When does Miranda apply? Part 2
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Examining the Two Prong Test for the Automobile Exception in NJ

In determining whether the state has met the two pronged test under the automobile exception to the warrant requirement, the first issue that must be proven is probable cause (prong one of the analysis). The state will be required to show that the police officers conducting the search possessed a well-grounded suspicion that the vehicle contained either contraband or evidence of a crime. The state must then establish prong two, that there were exigent circumstances that made it impractical to secure a search warrant. Exigent circumstances have been described by the New Jersey Supreme Court as unforeseen and spontaneous circumstances giving rise to probable cause. State v. Alston, 88 N.J. 211 (1981). The events surrounding the incident may occur swiftly. Immediate police action is required or else the evidence may be lost. The vehicle itself may be moved. There may be other suspects waiting to become involved in the criminal enterprise. The police may be unable to immediately leave their positions or secure additional officers to guard the vehicle in question. All of these may lead to the exigent circumstances necessary to establish the second prong of the analysis under the automobile exception to the warrant requirement.

The New Jersey Supreme Court recognizes that the term “exigent circumstances” is inexact and incapable of precise definition. In determining whether exigent circumstances exist, examine the facts of the case and look for elements of rapidly unfolding, unpredictable events which may cause the loss or destruction of evidence and make it impractical for the police to obtain a search warrant. If both prongs of the test are met, the scope of the warrantless search under the automobile exception is defined by the object of the search and the place where there is probable cause to believe it may be found. This may involve searches of the trunk, the interior of the vehicle, and any closed containers that may be inside the vehicle.

By |2012-06-07T17:30:26+00:00June 7, 2012|Traffic Stops|Comments Off on Examining the Two Prong Test for the Automobile Exception in NJ
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NJ Supreme Court Refines Refusal Protocol

The New Jersey Supreme Court just released its decision in State v. Spell.  The case involved application of the Refusal Instruction to be provided to individuals suspected of dwi in NJ.  The most important part of the decision was the Court’s holding that:

“The additional paragraph of the standard statement to which the Appellate Division referred is, according to itsinstructions, to be read aloud by police officers only if, after all other required warnings have been provided, a person detained for driving while intoxicated either conditionally consents or ambiguously declines to provide a breath sample. “

The crux of the decision is that the second paragraph of the form need not be read if the person accused of dwi unequivocally REFUSES.  The decision is problematic in my view inasmuch as video and/or audio recordings of the instruction are typically unavailable.  We will have to see how things play out in actual application.

 

By |2012-06-07T17:30:05+00:00June 7, 2012|Articles|Comments Off on NJ Supreme Court Refines Refusal Protocol
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Plaxico Has Real Trouble

It is big news – Plaxico Burress shot himself with gun. The incident occurred late night when he was at a crowded bar in New York City.  Beyond the obvious issues, Burress has put himself in an awful legal situation.  While he may have a carry permit in Florida, that is going to do very little for him in NY or New Jersey.  He has been charged with criminal possession of a handgun and is looking at a minimum of three years in jail if convicted of this offense.

I cannot tell you how often I get calls from individuals visiting or driving through New Jersey who get themselves into legal trouble because they have a loaded handgun. The typical scenario is that they were stopped for a relatively routine traffic stop only to be arrested when they freely admit that there is a handgun in the vehicle.  Whether it is a truck driver with a permit for Texas or a single women with a permit to carry from North Carolina, they have no right to possess a loaded handgun once they cross the border into New Jersey.  The most frustrating thing about this consultation is the fact that the caller usually thinks I am full of you no what when I tell them what they are facing. 

I certainly understand that other states allow individuals to possess loaded handguns, but the reality is that very few individuals can satisfy the requirements to buy a handgun let alone “carry” a handgun in NJ or NY.  These rules apply to visitors to the states yet this issue continues to crop up. The real alarming thing about the situation of Plaxico Burress alike those I typically keep out of jail is the fact that he was entirely aware of the fact that he was violating the law in possessing the handgun.  Disregard of the rules seems to be a recurring problem with Mr. Burress but this time it may hit him hard. I am sure some interesting legal arguments shall be raised in the case based on the existence of the Florida permit.

By |2012-06-07T17:29:58+00:00June 7, 2012|Articles|Comments Off on Plaxico Has Real Trouble
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Smell of Marijuana Yields Sizable Pot Bust in Freehold

Traffic stops are obviously routine throughout New Jersey.  So too are allegations of “smell” or “odor” of burnt marijuana by police officers. Indeed, this unquestionably has to be the most frequent rationale for an ensuing search in our experience.  Some times what starts as a goose chase turns into nothing but in other instances, like what happened in Freehold this past week, the expedition results in major fruit.  The stop and search in Freehold this week yielded what appears to be in excess of at least one pound of marijuana.

Probable cause for a search is always a primary issue that our lawyers focus on whenever a automobile search is involved.  The classic allegation of burnt marijuana can pose obstacles but it is not impossible to overcome.  It takes careful preparation and legal research, and focused cross-examination to win these types of suppression motions.  I know that the defense attorneys at our firm get particular satisfaction from success in these cases. 

By |2012-06-07T17:29:50+00:00June 7, 2012|Articles|Comments Off on Smell of Marijuana Yields Sizable Pot Bust in Freehold
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Victim of Robbery in Union County is Political Powerhouse

One of the more powerful political figures in NJ, Senator Raymond Lesniak, was the victim of a burglary two days ago.  The burglary escalated into a Robbery when the Senator encountered the intruders and was threatened unless he handed over all cash contained in his Elizabeth New Jersey home.  Lesniak resides in an upscale section of Elizabeth in the area of Kean University. 

The incident offers a practical illustration of both burglary and robbery.  N.J.S.A. 2C:18-2 defines a burglary in New Jersey as entry into a structure without a license or privilege. This offense is normally a third degree crime but becomes a second degree offense where the perpetrator inflicts or threatens to commit bodily harm to someone during the commission of the burglary.

Pursuant to N.J.S.A. 2C:15-1, Robbery is the use or threat to use force during the course of a theft. Robbery is a second degree crime but is enhanced to a first degree offense where a suspect attempts to kill, inflicts or attempts to inflict serious bodily injury, is armed, or where he threatens the immediate use of a deadly weapon. 

In the Lesniak theft case, one of the defendants threatened to “shoot him”.  This fact would probably take an incident which would otherwise give rise to a Second Degree Burglary charge and escalate it to a First Degree Robbery case. These guys are in a heap of trouble if they are apprehended and even our Union County Criminal Defense Attorneys would have a hard time mitigate the situation. 

By |2012-06-07T17:29:29+00:00June 7, 2012|Burglary|Comments Off on Victim of Robbery in Union County is Political Powerhouse
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Man Arrested for Theft of Wallet in Hazlet

A Hazlet man was arrested and charged with theft for stealing a wallet out of a woman’s shopping cart at K-Mart. The suspect has been charged with Theft by Unlawful Taking.  Bail has been set at $25,000 and the case will undoubtedly be referred to the Monmouth County Superior Court in view of the bail amount (i.e. appears to be Third Degree bail).

Under N.J.S.A. 2C:20-3 of New Jersey Criminal Law, an individual may be indicted for Theft by Unlawful Taking or Disposition and this can be a Second Degree, Third Degree or Fourth Degree crime. An indictment is properly grounded under N.J.S.A. 2C:20-3 when an individual unlawfully takes or exercises unlawful control over the property of another. The term “unlawful” refers to the accused’s knowledge that he was not entitled to take, exercise control over or dispose of the property. The accused must also intend to deprive the true owner of the property.

Here there is no question that the defendant comitted a theft by unlawful taking provided the story is accurate. He snatched the wallet and took off with it thereby manifesting an intent to deprive the owner of the property. The only real issue in this case appears to be where the charge will fall in terms of Degree of Crime. The grading of a theft by unlawful taking is predicated on the value of property or money involved: (a) it is a Second Degree Offense if the theft involved a value of $75,000 or more; (b) it is a Third Degree Offense if the value involved is between $500 and $75,000; and (c) it is a Fourth Degree Offense if the value involved is between $200 and $500. The extent of this suspect’s problem will hinge on how much money the woman was carrying in her wallet.  I certainly hope the victim did not have a winning lottery ticket in her wallet.
 

By |2012-06-07T17:29:23+00:00June 7, 2012|Theft Charges|Comments Off on Man Arrested for Theft of Wallet in Hazlet
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Little Silver Marijuana Charges Dismissed

Our law firm recently represented a client charged with possession of marijuana in Little Silver, New Jersey. The client was stopped for an alleged traffic violation for maintenance of lamps. The police officer pulled over our client for his third brake light being out, the brake light that sits in the center of the back of the vehicle in the back window. This alleged traffic violation was the probable cause for the traffic stop which led to the marijuana being found. The officer cited our client for a violation of N.J.S. 39:3-66, maintenance of lamps. This statute states that all required lamps be kept in good working order. This statute must be read in conjunction with N.J.S. 39:3-61 which details which lamps are required on a particular vehicle. According to N.J.S. 39:3-61, a vehicle must only have two working brake lights, located on the rear right and left of the vehicle. As a result, the third brake light being out is not a violation of N.J.S. 39:3-66 and the probable cause for the original traffic stop was not sound.

Based on this issue, our firm filed a motion to suppress the illegally seized evidence based on the lack of probable cause for the traffic stop. This motion was granted and the criminal and traffic charges, including possession of marijuana, were dismissed against our client.

By |2012-06-07T17:28:59+00:00June 7, 2012|Marijuana Defense|Comments Off on Little Silver Marijuana Charges Dismissed
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Cell Phone Sniffing Dogs?

Yes, it is true.  The New Jersey Department of Corrections has brought in cellular telephone sniffing dogs to patrol the state’s prisons.  Evidently, prisoners have been smuggling cell phones into jails and using them to conduct, in some cases, their illegal business.

Defense lawyers are accustom to hearing “we are going to bring the dogs…” approach taken by police officers. Indeed, it seems like this threat is a component in half of the automobile search cases our law firm handles.  While a stopped motorist need not give these threats any coercive effect, the situation is almost a moot point for a prisoner.  There will not be a threat but simply the appearance of the dog.

By |2012-06-07T16:51:06+00:00June 7, 2012|Articles|Comments Off on Cell Phone Sniffing Dogs?
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