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.
Self Defense
The success of self-defense as a defense to murder or assault depends on the extent of the force used and the extent of the threat to the individual’s safety. Non-deadly force can be used if the person reasonably believes that non-deadly force is about to be used on him. Deadly force can be used if the person reasonably believes that deadly force is about to be used on him. Deadly force is any force that produces death. In a minority of jurisdictions, before using deadly force you must retreat, provided that you can do so safely. In these jurisdictions, even where you can retreat safely, you don’t have to retreat from your home (this is known as the “Castle Rule”). Another important rule in this arena is the “Original Aggressor Doctrine” which requires that, if you are the original aggressor, you lose the ability to claim self-defense unless you withdraw from the altercation and communicate that withdrawal to the other party. A final important rule in this area is that you cannot use deadly force in defense of a dwelling or in defense of property.
Multiple DWI Offenses
Here are some important cases governing multiple DWI offenses and categorization of offenders in New Jersey:
State v. Burroughs, 349 N.J. Super 225(2002)
The court held that the defendant was subject to third offender treatment, although more than ten years elapsed between his first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses.
State v. DiSomma, 262 N.J. Super 375(1993)
The court held that a conviction for refusal to take a breathalyzer test could not serve as a basis for imposing second offender status when sentencing defendant for later conviction for driving while intoxicated.
State v, Tekel, 281 N.J. Super 502(1995)
The court held that defendant can be sentenced as a second offender after refusing to take a breathalyzer test when they have a previous DWI conviction.
DWI Drug Charges
Here are a couple important cases regarding DWI drug charges in New Jersey:
State v. Bealor, 187 N.J. 574 (2006)
The NJ Supreme Court held that competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant’s consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the defendant’s arrest, constitute sufficient proofs to establish DWI beyond a reasonable doubt.
State v. DiCarlo, 67 N.J. 321 (1975)
The NJ Supreme Court held that the definition of narcotic drug in the Controlled Dangerous Substance Act is not of controlling weight in interpreting the same phrase appearing in N.J.S.A. 39:4-50.
Strategies to Avoiding Incarceration in DWI Cases
The penalties for a third offense of Driving While Intoxicated under New Jersey’s DWI Statute, N.J.S.A. 39:4-50, are substantial and include 180 days of jail. While 90 days of the term of incarceration may be served in an inpatient rehabilitation facility with the approval of the sentencing Court, 90 days must be served in prison and most County Sheriff’s Offices have a blanket prohibition against house arrest, weekends, or anything other than flat time of incarceration in a County Jail. Given the significance of the sentence, what then can be done to defend a third DWI offense where an individual is indefensibly guilty?
The most common defense strategy for avoiding incarceration is a collateral attack on the first two DWI convictions. Existing case law supports the proposition that a prior DWI conviction cannot be utilized for purposes of incarceration absent a full and knowing guilty plea in all prior proceedings. This idea is frequently utilized to avoid use of a prior conviction which was based on a plea taken from an unrepresented individual; the underlying rationale is that the defendant was not afforded the full benefit and knowledge of his potential defenses at the time of the plea and that it would therefore be fundamentally unfair to send him to jail based on such a prior plea. Similarly, a conviction based on a plea which was taken without adequate instruction to a defendant of his rights and a clear and unequivocal factual basis for the prior guilty plea should not be counted for purposes of incarceration as a third offender. Where one of these principals is applied by a Court, the typical ruling is that the defendant shall be subject to all other penalties of a Third Offense other than the incarceration.
In defending a Third Offense for DWI where an individual has no real defense substantively to the charge, the proper course of action is therefore to conduct a thorough investigation into the facts and circumstances surrounding the prior convictions. While the law is certainly becoming more stringent with respect to the evidence necessary to support invocation of Laurick; however, it is not unheard of for a municipal court to accept the representations of a defendant under oath as the factual basis for invocation of this case law. The more common scenario is, however, for counsel to request and obtain the transcripts from the prior proceedings to corroborate that the defendant was unrepresented and/or that the plea was lacking in the prior proceedings. Prior transcripts are sometimes unavailable as prior convictions are often very old and this can provide a fertile opportunity for a defense in and of itself for an individual (i.e. how can the state refute what the defendant is claiming regarding the prior plea where the transcripts are unavailable). It is important to remember that the key consideration here is the ability to create an issue(s) which will allow for a downward departure from the standard sentence as prosecutors in New Jersey are absolutely forbidden from plea bargaining DWI cases; in other words, there must be some bona fide legal basis or argument to support a departure from the standard penalties. A thorough investigation into the prior convictions can yield such an issue in a Third DWI case.
The question which invariably follows when the aforesaid law is explained to an individual facing a Third DWI charge is: What are my chances of availing myself of one of these defenses? I have found that the best way to respond to this question is to give the illustration of a real life case I handled for an individual we will refer to as DV. DV was charged with a third DWI and the question arose as to whether it should actually be treated as a Third or Second Offense based on the fact his Second Offense was treated as a First Offense at the time of the related plea. DV’s second conviction came over ten (10) years after the first offense and N.J.S.A. 39:4-50 provides that a prior conviction shall not be counted when a 10 year gap between convictions has accrued. DV was therefore able to have his second offense treated as a first rather than a second; so how then would the Third be treated? Unfortunately, DV hired an attorney who did not have a good grasp of the law nor the desire to undertake the effort to fully defend the client and, as a result, the man entered a plea to a third DWI and was committed to jail for 180 days since New Jersey’s Supreme Court held in State v. Burroughs 793 A.2d 137 (N.J. Super A.D. 2002)
that the 10 year drop off was only available one time, holding that a third offense was actually a third offense irrespective of the time gap between convictions. This has given rise to the coined phrase that “a third is a third”. The problem with the plea to the third offense was the fact that the first plea was improperly taken by the Court and a transcript of the proceeding demonstrated that the law was violated in terms of failure to enter a knowing and intelligent plea.
Our initial effort for DV was to file an immediate application for post-conviction relief with the original trial judge but this was unsuccessful as the Court simply did not understand the importance of the fact that we were not attempting to invalidate the prior conviction based on a 10 year gap but rather based on an improper plea having been taken at the time of the first conviction. On Appeal to the Superior Court, our efforts proved successful and the Municipal Court Judge was reversed. While our client had served approximately 45 days in jail as of the date of the ruling, as we did not become involved in the case until he was already in jail, he was able to avoid over four months of incarceration simply by our undertaking the effort which DV deserved. The client has since turned his life around, stopped drinking, and can only be viewed as extremely fortunate that no one was ever injured by his conduct.
I often provide the story of DV to individuals charged with a third offense as it bespeaks of the fact that all hope may not be lost for an individual interested in turning his life around short of going to jail for 180 days. Competent counsel has several avenues to avoid the prior convictions. An individual charged with his third dwi should certainly take advantage of these opportunities as a flat term of incarceration is going to have an overwhelming impact on his or her life.
Roadblocks
Here are some important cases regarding roadblocks in DWI cases in New Jersey:
State v. Kirk, 202 N.J. Super 28(1985)
The court held that temporary road block set up by exercise of absolute, unbridled discretion of officers in field is violative of State Constitutional provision against unreasonable seizure; however, if certain procedures set forth, ensuring supervisory control of checkpoints and warnings to motorists, are carefully followed, any constitutional objections will be overcome.
State v. Moskal, 246 N.J. Super 12(1991)
The court held that the stop of a motorist at a sobriety checkpoint did not violate his Fourth Amendment rights; site of checkpoint has been determined by DWI arrest rate, past accident rate, public safety and awareness that would arise from the checkpoint, requisite participation of command or supervisory authority had been obtained in overseeing operation, and all necessary advance publicity and warnings of checkpoint had been given.
Reasonable Suspicion of a Violation
In order for a traffic stop to be valid in New Jersey, there must be reasonable suspicion that a motor vehicle violation has been committed. There is significant case law in New Jersey concerning proper traffic stops leading to drinking and driving charges. First, under State v. Carpentieri, 82 N.J. 546 (1980), the New Jersey Supreme Court held that the police must have an articulable and reasonable suspicion that a violation of the traffic laws has occurred in order to effectuate a stop for DWI. Next, in State v. Pegeese 351 N.J. Super 25 (2002), the court held that the police may not detain occupant for consent search absence violation or criminal conduct once evidence of proper licensing, registration and the like is supplied. Finally, in State v. Pitcher 379 N.J. Super 308 (2005), the court decided that a stop based on an officer’s mistaken understanding of a fact, e.g., that the driver had a suspended license, will not be invalidated provided the officer’s actions were supported by a “reasonable” belief that the related facts were accurate. The court held that officer’s traffic stop, conducted in reliance on erroneous information in the DMV database that showed that the defendant had a suspended license, was reasonable.
Therefore, for a DWI charge to hold up, there must be a proper traffic stop supported by reasonable suspicion.
License Suspension
Under the New Jersey Driving While Intoxicated (DWI) Statute, N.J.S.A. 39:4-50, there is a mandatory license suspension for a driving while intoxicated offense. The nature of the license suspension depends on the blood alcohol content (BAC) of the driver and the driver’s prior history of DWI charges. If this is a first offense and the blood alcohol readings from the breathalyzer machine read between .08% (the legal limit in New Jersey) and .10%, then the offender will be facing a three month license suspension. If this is a first offense and the BAC is greater than .10%, then the driver will be facing between seven months and one year license suspension. If this is a second offense, the driver will be facing one year suspension of his New Jersey Driver’s license. If this is a third offense, the driver is looking at a ten year suspension of your driving license. Therefore, it is imperative that you contact an experienced DWI attorney to explore your prior offenses and attempt to avoid classification as a second or third DWI offender in New Jersey.
The Horizontal Gaze Nystagmus Test
The Horizontal Gaze Nystagmus (HGN) Test is a fairly new field sobriety test in New Jersey drinking and driving cases. This is one of the field sobriety tests law enforcement officers use when conducting DWI traffic stops. If the breathalyzer or blood test results are not conclusive, the State will attempt to use these field sobriety results to prove intoxication. In State v. Maida 332 NJ Super 564 (Law Div. 2000), the court held that HGN testing is generally accepted in the relevant scientific community. However, absent a similar determination by an Appellate Court or the New Jersey Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly-devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. This issue went to the Appellate Division in the case of State v. Doriguzzi 334 NJ Super 530 (2000) where the Appellate Division declined to take judicial notice of the HGN tests. The court held that HGN testing is scientific in nature and must be supported by expert testimony.
Field Sobriety Tests
Police are generally required to conduct Field Sobriety Tests before issuing a summons for driving while intoxicated or driving under the influence. These physical and psychological tests are intended to provide the police with information necessary to determine whether an individual is under the influence of alcohol or drugs. The tests are also necessary because a police officer must possess probable cause to make an arrest and unless he has portable breath test equipment in his vehicle, field sobriety tests (also referred to as psycho-physical testing) are ordinarily the only basis for establishing probable cause for an arrest. Additionally, the tests provide evidence which the police can rely upon in attempting to prove a New Jersey DWI, DUI or Refusal case where blood alcohol concentration cannot be established through blood or breath tests.
There are many issues which may be raised with respect to administration and interpretation of field sobriety tests. Indeed, many times police officers fail to administer the tests properly thereby destroying the value of the tests. In other instances, the test results are misinterpreted or exaggerated, and this can also be brought out during the course of a case. If the weight of the field sobriety tests can be eliminated or significantly reduced, then the prosecutor may be unable to satisfy his burden of establishing probable cause for the drunk driving arrest and any DWI, DUI or Refusal charge issued.
The types of field sobriety tests administered in a given case vary, but the pool of tests which are utilized by police officers typically involves the following:
1. The Horizontal Gaze Nystagmus Test: this is a test wherein police attempt to determine whether probable cause exists to make an arrest based on how smoothly an individual’s eyes are tracking. For a more detailed discussion concerning the limited use of this test, readers are referred to New Jersey’s Appellate Division decision in State v. Doriguzzi, 334 N.J.Super. 530 (App.Div.2000).
2. Head Tilt Test
3. Finger to Nose Test
3. The One Leg Balance Test
4. Heal to Toe Test
5. Reciting the ABCs
6. Counting
The results of the field sobriety tests, as well as other circumstantial evidence, is recorded in the Police Report and Drinking and Driving Report contained in the arrest records (i.e. the discovery).
Leaving the Scene of an Accident Charges
A leaving the scene of an accident charge in New Jersey is a violation of N.J.S.A. 39:4-129. The charge can involve fines, license suspension, and even jail, depending on whether or not there was an injury involved and/or the extent of any property damage involved in the accident. If you are convicted of leaving the scene of an accident it involves mandatory license suspension (ranging from six months to a year) for the first offense. In order for the State to prove a leaving the scene of an accident charge, they must show that the driver was knowingly involved in an accident. What this presumes is that the State can also prove operation, which is usually established by witness testimony or admissions made by the accused. “Knowingly” involved in an accident means that the driver was actually aware that he was involved in an accident or, that given the circumstances, he reasonably should have been aware that an accident had occurred. A person acts knowingly with respect to the result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. It should also be kept in mind that in those instances where the prosecutor is seeking to impose penalties based on personal injury or significant property damage, those elements must also be established in order to convict. The law and standard for proving a charge of leaving the scene of an accident charge is illustrated in the New Jersey case of State v. Kay 151 N.J. Super 255 (1977). In that case, the court held that evidence that defendant’s automobile was involved in a hit-and-run accident at 2:00 a. m. and that the victim identified defendant as the driver, although not “without a doubt,” was sufficient to establish beyond a reasonable doubt that defendant was driving his automobile at the time of the accident and was guilty of leaving the scene of an accident.