Wednesday, January 23, 2019

DUI + Refusal = Jail

James T. Dougherty was convicted, on February 4, 2009 of refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a) and on February 23, 2009, of driving while intoxicated (N.J.S.A. 39:4-50) . On August 19, 2015, 6 years later, he was convicted of DWI and, on November 9, 2015, he was convicted for refusal. Dougherty was later stopped, on December 19, 2015,while driving during the seven-month suspension period for the refusal (N.J.S.A. 2C:40-26(b)), a fourth degree crime for a second or subsequent DUI conviction. Dougherty ultimately pled guilty and, after receiving the statutory minimum 180 days incarceration, appealed based on the argument, he based on State v. Ciancaglini, 204 N.J. 597 (2011), that a charge of DWI or refusal could not be used to enhance the penalties of the other and that incarceration stemmed only from two convictions for driving under the influence or two convictions for refusal to submit to chemical breath testing. Dougherty also claimed the statutory language was ambiguous and required dismissal of his indictment. The appellate division cited to the strong public policy interest in addressing the damage caused by drunken drivers and found the statutory language to be unambiguous as to the fact that either two DUI convictions, two refusal convictions or one of each would meet the requirement of two predicate violations and trigger a period of 180 days incarceration. The appellate division read Ciancaglini to hold that "a defendant's refusal conviction cannot be considered a prior DWI violation for enhancement purposes" in sentencing under the DWI statute and found the decision to have no bearing on sentencing for driving during a period of suspension for DWI or refusal. Further, the appellate division looked to State v. Frye, 217 N.J. 566 (2014), reaffirming In re Bergwall, 85 N.J. 382 (1981) which held that a prior DUI conviction would serve to enhance the sentence for a subsequent refusal conviction. The matter of the number of years between the arrests and convictions was not addressed. The penalties for driving under the influence are severe including substantial fines, insurance surcharges, loss of license and often the loss of employment when you cannot drive to work. Each time you are convicted, the penalties get more harsh and you run the very real risk of jail time. If you are facing charges of DUI, refusal, CDS in a motor vehicle or driving while suspended for DUI or refusal, call the Darling Law Firm, LLC now for representation or visit DarlingFirm.com for more information. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Tuesday, January 15, 2019

DUI Repeat Offenders Will Be Punished Accordingly

Repeat DUI (N.J.S.A. 39:4-50) offenders may not serve weekend jail terms. Although it was determined by the N.J. Appellate Division on July 13, 2019, that those charged with multiple driving under the influence charges are ineligible for periods of incarceration over a length of time, many charged with such repeat offenses continue to believe the alternate sentencing in possible. State v. Grabowski, a 2006 case, held that periodic imprisonment was acceptable for multiple drunk driving offenses. Pedro Anicama, a Newark restaurateur convicted of his third DWI, was permitted by the Harrison Municipal Court to serve his sentence of incarceration by spending 2 days per week in jail so as to minimize the adverse effect of the incarceration on Anicama's business. On a trial de novo in the Law Division, the ruling of the Harrison Municipal Court was overturned and the Appellate Division affirmed the Law Division's ruling. The Appellate opinion, delivered by the Honorable George Leone, focused on the punitive intent of the Legislature in drafting the provisions of N.J.S.A. 39:4-51, which addresses violations of 39:4-50. The Appellate Division indicated the Legislative intent to allow work-release in limited situations for first and second offenders but to prevent third or subsequent offenders the opportunity to participate in work-release programs. If you are facing charges for DUI/DWI, reckless driving, careless driving, CDS in a motor vehicle or other serious motor vehicle charges, please visit us at DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Wednesday, January 2, 2019

Miranda Warnings Now Required When Parents Arrive at Police Station to See Minors

A minor involved in a second-degree aggravated assault was adjudicated delinquent based on his age. Two minors were stopped by police after reports indicated that two individuals fled the scene of a shooting on bicycles. As a minor, the charges of second-degree aggravated assault (N.J.S.A. 2C:12-1), attempted murder (N.J.S.A. 2C:11-3, 2C:5-1), possession of a firearm for unlawful purposes (N.J.S.A. 2C:39-4), unlawful possession of a weapon (N.J.S.A. 2C:39-5) and possession of a firearm gave rise to only a delinquency adjudication. Police took the minor to the station for questioning and he was not yet Mirandized when his mother showed up and asked A.A., in the presence of detectives, whether he was near the shooting. A.A. replied that he was and further added that it was “because they jumped us last week”. The trial court admitted the statement of A.A. to his mother as it was not the product of police interrogation. A.A. appealed the admission of the statement to his mother, along with other issues. The Appellate Division likened the situation to that of police using a parent to obtain a confession in violation of a juvenile’s rights, even if the police had not requested the mother ask the question and had no idea the mother would ask the question or that the juvenile would answer. The appellate division determined that the detectives should have known that a conversation between A.A. and his mother may produce an incriminating statement gave rise to the suppression of the statement in light of the fact that the police had not Mirandized the minor. The Appellate Division advised that, in such situations, the police should provide a mechanism for the minor and parent to confer privately and that, if officers are present during any discussions between a parent and minor, the minor should be Mirandized. For more information about delinquency charges visit DarlingFirm.com or call us today at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intened to replace the advice of counsel.

Wednesday, October 10, 2018

A4292 is Protection for Car Dealers at Your Expense

Assembly Bill A-4292 came to my attention today. Although it is not one of the topics I typically write about, I feel it is important for people to understand this harmful legislation. Introduced in June 2018, this bill requires auto dealerships to notify buyers of recalls on used motor vehicles for sale. That part is ok but what comes next is not palatable for consumers. The second main feature of this Bill is the limitation on attorneys’ fees in consumer fraud actions against car dealers. My first thought was that the person pointing this out to me was an attorney who makes a good living representing consumers against car dealerships under the current statute which allows for treble damages and counsel fees. My second thought was of the individuals I have represented in consumer fraud actions against car dealers. Car dealers have attorneys representing them and it is just part of the cost of doing business. Car manufacturers also have big corporate attorneys who come in to represent them. First they bring the local “big guns” and then they bring in the real “big guns” from Detroit if they lose the summary judgment motion to get out of the case. Without the car manufacturer pressuring the dealership to settle, the dealership will fight to the end to protect their reputation in their territory at great expense to the defrauded consumer. Whether it is on a contingency fee basis or through the recovery of attorneys’ fees to pay back their litigation expenses, the provision for attorneys’ fees to the consumer under the Consumer Fraud Act is often the only way a consumer can afford to fight a car dealership when a car is not sound or when they are defrauded by a dishonest dealer. I have represented individuals who would have been left with a non-working vehicle and no way to fight if they did not have a reasonable degree of certainty they would recover counsel fees at the end of the case. A-4292 still provides for compensatory damages and does permit treble damages in certain instances but it limits attorney fees to “up to $1,000 or up to one third of the amount of damages awarded to the person in interest, at the discretion of the court…” What this could mean to a consumer is that if they purchased a vehicle that suddenly became inoperable and the dealership refused to repair it based on some limited liability theory, they could sue the dealership, and sometimes the car manufacturer, and the court may award them a replacement vehicle to make them whole after litigation. After fighting summary judgment motions against the dealership and the manufacturer’s “big guns” and then going through negotiations or trial, they can find themselves with a legal bill exceeding the value of the car that was replaced. If the consumer knows that they will get only $1,000 or even one third of the amount of damages awarded, that means that, unless they received a replacement vehicle and additional punitive damages award from the court, they may have a bill for legal fees that exceeds the value of the vehicle. In summary, A-4292 serves to limit the opportunity for the consumer to sue a car dealership or manufacturer and offers a layer of protection for dealerships exercising bad practices. There are other certain presumptions created under A-4292 that are favorable to the dealerships and adverse to consumers. The Consumer Fraud Act was created to protect you from bad practices of car dealers and others. To limit its scope is to diminish the bargaining power of the consumer. For more information about legal issues, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Friday, September 28, 2018

Strong Push for Municipal Court Reform

Municipal court reform in New Jersey has been a topic for some time as the municipal court system funnels large sums of money into towns from residents and often those passing through. Now Chief Justice Stuart Rabner is pushing hard to change the way business is done in municipal courts. The push includes the issue of municipal judge appointments as well, due to the belief that municipal court judges are often appointed based on political contributions they have made to the mayor's campaign. Some long-discussed matters have included consolidation of municipal courts, changing the appointment process for judges and separating the imposition of penalties from the collection of fines. One proposal is the creation of qualification committees in each county for the vetting of candidates for municipal judge. One proposal includes an evaluation by the vicinage judge presiding over municipal courts, a representative of the municipality where the judge would be seated and two members of the county bar association who practice in municipal court. the League of Municipalities has been outspoken about the loss of local perspective in court appointments. Those seeking reform have posed that towns submitting qualified candidates have nothing to fear from the reform. The Asbury Park Press and USA Today undertook and investigation into local court abuses, the report was a major catalyst for the reform movement. A panel has been assembled including prosecutors, public defenders and private defense counsel, judges, state agencies, public interest groups and members of each branch and layer of government. State Attorney General, Gubir Grewal hopes to improve the uniformity in municipal courts. If you are facing loss of license or significant fines in municipal court, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving while suspended or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Monday, September 24, 2018

Anti-Bullying and Free Speech Separated By Unclear Line

A Hackettstown student used a derogatory comment for a police officer during a class discussion and under the State's Harassment, Intimidation and Bullying (HIB) policy, was suspended for one day after a hearing. The student then sued the school for violating her right to free speech. Additionally, in the suit, the practices of the school administration were called into question as, when discussing the matter with the student, school officials allegedly likened the student's comments to epithets regarding race and sexual orientation. The comments by the student were made during a discussion in school relating to police interactions with minorities. The HIB statues are broadly construed to include characteristics such as height, physical fitness and other characteristics not typically encompassed in workplaces and other settings where similar statutes are applied. The remark was made about a fictional officer and did not pertain to anyone present. One student present is the child of a police officer and found the comment offensive. The question at hand is whether a student may express their views when other students may find those views hurtful or insensitive to the degree that they would violate the HIB statutes. Although an argument could be made that HIB statutes may be misused to punish political speech by students, such an argument could be made only after the speech, political or otherwise, was found offensive by another student or the administration. The within matter, a hostile education environment claim under Title VI of the Council Rights Act of 1964, claiming violations of the First Amendment and ther Law Against Discrimination remains pending in federal court. This is not the first time that New Jersey's Anti-Bullying Bill of Rights Act has conflicted with freedom of speech rights. Courts have found mixed results in these cases including throwing out a suit by a teacher who was reprimanded for a violation and upholding the schools right to suspend a student who posted on social media about school related matters. In denying a motion to dismiss, filed by Hackettstown School District, U.S. District Court Judge found merit in the student's claims of infringement of her rights and claims against the administration for creating a hostile environment. Others find the statute to be much more clear and believe that if the harassment, intimidation and bullying statutes apply, then the First Amendment protections claimed by the student must yield to the statute. A significant prong in the analysis is whether the behavior in question actually touches the school. Due to claims of vagueness, new regulations relating to the HIB statute were adopted by the NJ State Department of Education which afforded greater discretion to principals but some believe greater clarification is required regarding the intersection of anti-bullying laws and the First Amendment. If your child has been bullied and it is not being taken seriously or your child is accused of violating anti-bullying statutes, visit DarlingFirm.com or contact us for assistance.

Thursday, September 20, 2018

Judge Charged With DUI is Censured

Municipal Court Judge Wilfredo Benitez attempted to talk his way out of a driving under the influence arrest by wielding the power of his office. Now Benitez is barred from presiding over DUI matters until September 7, 2019, although he remains a municipal court judge in East Orange and Belleville. Benitez was arrested in November 2016 when found by New Jersey State Troopers asleep in the driver’s seat of his vehicle on Route 80 West in Teaneck. Upon investigation, Benitez was found to possess bloodshot and watery eyes and the odor of an alcoholic beverage on his breath. After field sobriety tests, the Judge was placed in handcuffs and became belligerent, telling officers that he is a Judge and they were wasting their time. The Advisory Council on Judicial Conduct (“ACJC”) filed a complaint due to Benitez representation that he was a Judge to win favor with the police. The ACJC found mitigating factors in that there was no prior history of such behavior in a lengthy career and aggravating factors in Benitez’ insulting language and efforts to degrade the Troopers. The result was the censure of Wilfreo Benitez and a temporary bar from presiding over DWI matters. DUI Charges in NJ will have a serious impact on your life no matter who you are and they can have significant implications in related matters. If you are charged with Driving Under the Influence in NJ, you should seek an experienced attorney immediately to protect your rights. For more information about DUI, reckless driving or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.