The Law Offices of Jonathan F. Marshall, is a statewide criminal defense firm with twelve offices throughout New Jersey. Our team includes ten (10) attorneys that dedicate their practices exclusively to defending the accused, making it a unique commodity in the state. The qualifications of the lawyers are also impressive and include:
• Over 200 Years of Combined Experience Representing Clients Charged With Indictable Crimes, Disorderly Persons Offenses and Serious Motor Vehicle Violations
• Former County Prosecutors Who Have Served At The Highest Levels Such As Director Of Major Crimes, Juvenile, Domestic Violence, Special Operations, Homicide, Drug Task Force, Guns, and Even An Entire Trial Division
• Certified Criminal Trial Attorneys
• Recognition as Top 100 Trial Lawyers by the National Trial Lawyers Association, Top 10 Defense Lawyers in New Jersey by the National Academy, Ten Leaders in both Criminal Defense & DWI in New Jersey and Superlawyers
Free consultations with an attorney at the firm are always free. You can reach us 24/7 at 877-450-8301.
Reduced Legal Limit in NJ: Opportunity or Pitfall?
The initial reaction to the reduced BAC limit in the state to .08 was that this would pose additional pitfalls for those accused of a DWI in New Jersey. While from a simplistic perspective this may appear to be the case, the tiering for a first offender under the statute has provided an interesting opportunity for the defense. In this regard, the DWI statute, N.J.S.A. 39:4-50 provides for a three month suspension for a first offense where the BAC of the accused is between .08 and .099, and a seven to twelve month suspension where the first offender’s BAC is .10 or above. Under the previous version of the statute, the BAC was .10 and the minimum suspension for a first offense was six months. What we now have, therefore, is a statute which limits license suspension to 3 months where there are either no BAC readings or the readings are less than .10 but in excess of .08. Accordingly, when a knowledgeable defense lawyer can either get the BAC readings excluded or reduced below .10, for example, based on a depletion argument, software tolerance argument, cell phone interference, etc., he can eliminate four months of suspension (at a very minimum). Conversely, the tiering of the statute provides an out for prosecutors in these situations insofar as they can still obtain a DWI conviction, albeit for a reduced suspension period. We find that the new statute provides an opportunity to provide an enhanced frequency of reduction in license suspensions for first time offenders.
Permitting an Intoxicated Driver to Drive: Potential Criminal and Civil Liability
A third party who seeks to take custody of an arrested intoxicated driver after he or she has been processed by the police is required to acknowledge the potential civil and criminal liability associated with permitting the intoxicated person to drive. The law enforcement agency releasing the intoxicated driver into the third party’s custody must provide the third party with a written notice of the civil and criminal penalties for knowingly permitting an intoxicated driver to operate a motor vehicle. There is no requirement that the third person sign the written notice as a condition of the intoxicated driver’s release. The warning drafted by the attorney general admonishes the person who volunteers to transport the intoxicated driver from police custody that he or she would be potentially liable for criminal sanctions and civil liability by permitting the operation of a motor vehicle by the intoxicated defendant.
The attorney general’s warning refers to the “allowing” offenses under N.J.S.A. 39:4-50(a) and mentions the license loss, fines, monetary penalties and possible incarceration associated with that offense. There are also vague references in the warning to criminal prosecution in the event the person taking responsibility for the defendant permits or facilitates the defendant’s operation of a motor vehicle while still intoxicated. If such a defendant were to become involved in an accident where other persons are injured or killed, the person who took responsibility for the intoxicated driver could be subject to indictment, prosecution, fines, mandatory sentences, and prison time. Finally, the warning advises that permitting an intoxicated defendant to operate a motor vehicle may result in civil liability in the event of an accident resulting in death, personal injury, or property damage.
Driving While Intoxicated (DWI) Charges and Mandatory Impoundment of the Vehicle
The impoundment of motor vehicles of suspected intoxicated drivers is now mandatory. Whenever a person has been arrested for a violation of N.J.S.A. 39:4-50 for drunk driving or for refusing to submit to a breath test, the arresting officer must impound the motor vehicle that the defendant was operating. The vehicle must remain in impound for at least 12 hours. The law enforcement agency that impounds the vehicle may charge a reasonable fee for towing and storage of the vehicle. The vehicle may continue to be impounded until the fee has been paid.
After the initial 12 hour waiting period, either the defendant or his agent may reclaim the vehicle. The owner or lessee of the vehicle (who is other than the defendant or an authorized agent of the defendant when the defendant is the owner), may reclaim the vehicle prior to the expiration of the 12 hour waiting period provided that such person can meet certain statutory requirements. These include:
1. Presentation of current driving credentials, including a valid license, proof of ownership, proof of lawful authority to operate a vehicle, and proof of current liability insurance;
2. Proof that the operator is capable of operating a vehicle in a safe manner and would not be in violation of any provision of the motor vehicle statutes.
3. Proof that the person receiving the vehicle can comply with any other conditions for release of the vehicle that have been established by the arresting law enforcement agency.
Case Law Definitions of “Under the Influence of Alcohol”
The working definition of “under the influence of alcohol” as related by the case law has not changed much in the past 100 years. In State v. Emery, the New Jersey Supreme Court quoted with approval a definition that dated back to at least 1917. The court held “N.J.S.A. 39:4-50 penalizes a person who drives while under the influence of intoxicating liquor. Although prosecutions pursuant to these provisions are commonly and colloquially termed ‘drunken driving cases’, it is settled that the statute does not require as a prerequisite to conviction that the accused be absolutely drunk, in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” State v. Emery, 27 N.J. 348 (1958).
So, at one extreme, it is not necessary that the defendant be intoxicated in the sense of being sodden with alcohol in order to be under the influence. At the other extreme, the condition of being under the influence must mean something more than having partaken of a single drink, even though physiologically, the smallest amount of alcohol has some slight effect or influence on the drinker. Considering these issues, it appears that the Legislature intended to strike a balance between these two extremes when using the term “under the influence”. The concept of being “under the influence of alcohol” is a general condition as a result of which a motor vehicle operator is so affected in judgment and control that it is improper for him to drive. Notice that the standard is improper, not unsafe, although proof of erratic driving is generally admissible as evidence of being under the influence. The proper standard of proof is proof of an impairment of either mental faculties or physical coordination.
Leaf Does Not Change Colors in Texas
The AP Wire reported on Thursday that Ryan Leaf’s efforts to build a coaching career have taken a turn for the worse. He is alleged to have solicited pain medication from one of his players. It is unclear exactly what medication was requested but it is apparent that it was a prescription drug. Chief Bobby Griffin of the Canyon Police reports that Leaf is being accused of obtaining a controlled dangerous substance by fraudulent means. Leaf subsequently resigned on Friday.
We happen to deal with illegal prescription cases exactly like Ryan’s everyday in our New Jersey criminal defense firm. While it cost him his job, the honest truth is that this stuff effects all types of people everyday without such consequences. They go in for oral surgery or some other treatment, are prescribed opiate based medication, and they are off and running. We even have occasion to represent medical practitioners and pharmaceutical sales people on this type of case. It is classic addiction with no involvement of violence or a victim in most cases If Texas takes a similar approach, the case will probably resolve with limited impact on Mr. Leaf provided he hires the right attorney. While it may be a crime to acquire or carry pain medication without a prescription, a good defense lawyer can usually negotiate the situation. Nonetheless, a Texas criminal defense lawyer like Jamie Spencer probably would have a better feel for what may happen in a Texas Court.
No New Trial for OJ
USA Today reported Friday that OJ lost his bid for a new trial. The primary basis for the motion was erroneous rulings limiting cross-examination of witnesses and errors during jury instruction. OJ is now going to have to wait until his appeal is heard before he can hope to be released from jail.
Applications for post-conviction relief, such as motions for a new trial, are actually commonplace in our New Jersey criminal defense law firm. However, success on these types of petitions require good facts, law, and/or creative argument. The Judge in OJ’s case apparently found nothing of a reversible nature and now it is on to appeal. The outcome is not surprising as it is often very difficult to get a trial judge to grant a new trial based on his or her own error, after trying a case for weeks. This is why it is so important to get things right if at all possible at trial as “do overs” are the limited exception. I am sure OJ’s Las Vegas defense attorney has a better prospective on what happened. In any case, OJ’s involvement with the judiciary shall continue.
Leyritz Wants Ignition Interlock Removed
While I can be a very compassionate defense lawyer, some guys have real huts-pa. After killing a women in a DWI related accident, Jim Leyritz was order to install an ignition interlock in his vehicle as a condition of his bail. The NY Post is reporting that Leyritz filed an application with the Court to remove the interlock because valets had problems driving his car and there were false positive readings if Leyritz ate certain foods like chicken marsala.
Am I missing something here? I sincerely hope that the report was incomplete or inaccurate because, otherwise, Leyritz needs to get his head examined. You are about to go on trial for killing a women and you have your attorney file a motion like this — the inflammatory nature of the application is immeasurable. You need only review some of the comments to the article and it is immediately apparent just how explosive this is going to become. Now you are going to have a family that is only more incensed. Media and the like who are going to have absolutely no compassion for Leyritz. Lastly, what message is it sending to the court that may oversee the trial or sentencing of Leyritz? This move would not have been one I made defending someone in a similar situation in New Jersey. Perhaps I am just missing a piece of the pie.
Alcotest Protocol Providing Interesting Opportunities for First Offenders
The suspension period for a First Offense under New Jersey’s DWI statute is tiered based on blood alcohol content. While a first offense carries 7-12 months suspension where the accused has a BAC in excess of .10, the license suspension for a first offender is limited to 3 months if the readings are below .10 but in excess of .08. The experience of our offices has been, however, that the readings blown by an accused does not necessarily translate into how he will be penalized at the conclusion of a case handled by our dwi lawyers.
Parking At School Just Became Riskier
It is obviously common for Junior and Seniors in New Jersey High Schools to drive to school. Kids are now going to have to reconsider this decision given the recent decision of the Appellate Division in State v. Best (11/17/08 Law Journal). In this regard, the Court expanded the ability of schools to search student vehicles, concluding that because of :
the strong state interest in maintaining order, safety and discipline in the school environment, neither probable cause nor a warrant is required. The privacy interests of students are outweighed by the substantial interest of teachers and administrators in maintaining a drug-free environment on school grounds. Such vehicle searches need satisfy only the reasonable suspicion standard adopted in T.L.O.
The net result of Best is to create a wider exception to the warrant requirement as it related to motor vehicle searches of student vehicles on school property. A search will now be valid even where probable cause is lacking so long as the school possessed “reasonable suspicion” that the vehicle contained drugs or contraband.
Notwithstanding the Best decision, Juvenile searches remain fertile for defense. We frequently see a total disregard for the rights of Juveniles in the field and this may be attributable to the thought that law enforcement is just helping the child. I know that there is a balance here but I just have a hard time with unfettered searches in any context. If you open the door wide open, how can you insure that the reduced standard is even adhered to?
Locklear Formally Charged
As a 43 year male, Heather Locklear has always been one of my favorites. It is also relatively intriguing that she has a thing for Jersey boys. But enough with the kidding. She has obviously had some difficulty lately and she probably is no different than many of our clients when it comes to drugs and/or alcohol. Her September arrest for DUI is apparently based on “intoxication” from prescription medication of some kind as no alcohol or illegal narcotics were in her blood at the time of the arrest.