Another year........

As we celebrate the beginning of 2014 with hopes and dreams of better things to come for all our Firm would like to thank our clients, friends and families for the years of trust, support and business! Happy New Year from all of us to all of you!

Improper Use Of DNA Evidence Is Reversible Error NJ

Dow was convicted of murder (N.J.S.A. 2C:11-3a(1)-(2)) and possession of a firearm with the unlawful purpose of using it against the person or property of another (N.J.S.A. 2C:39-4a) for shooting and killing her former lover, William Michael Seidle. The victim was shot 3 times in the home he had shared with the defendant. The police recovered no evidence of a murder weapon or any other incriminating evidence when after a search of defendant's residence and storage unit. Another woman Seidle had been seeing received 2 voice messages from a woman with a deep voice and English accent instructing her to leave Seidle alone. Neighbors testified defendant was outside Seidle's home on the morning he was killed and her car was in the driveway the night before. Defendant was suspected of faxing 2 disparaging letters to Seidle's employer within the days leading up to the murder and was identified by the clerk in the printing store from which the faxes were sent. The day after Seidle's death was reported in the news, defendant attempted suicide leaving a lengthy note indicating her suicide attempt was on that date as it was the anniversary of her daughter's death, implicating her former lover in arranging to have Seidle "fixed", accusing Seidle of beating her regularly and failing to indicate knowledge of Seidle's death but he testified to the contrary on behalf of the State. The State used a DNA expert to explain that comparing DNA to DNA found in evidence can either include or exclude them as present or determine them to be the source of the DNA and tying this into a cut on defendant's nose not seen before Seidle's death. The State's expert did acknowledge that the mixture of DNA did not mean that all of the DNA on the fabric was placed there at the same time and defendant had lived with Seidle for some time prior to their break-up just before his murder. In State v. Dow, the NJ appellate court reversed the conviction and remanded for a new trial after finding that the prosecutor's use of the DNA evidence was knowingly mischaracterized and the admission of the defendant's suicide note without adequate evaluation of her statement that the suicide attempt, on the anniversary of her daughter's death, was in any way related to guilt or avoidance of prosecution. If you are facing criminal charges, there may be multiple defenses you have and the prosecution will make every effort to utilize any piece of evidence against you. It is critical that you obtain an experienced criminal defense attorney to represent you immediately. For more information about weapons possession or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Purposeful and Knowing Intent And The Insanity Defense

A defendant pled guilty to kidnapping, attempted murder, burglary, weapons charges and other criminal charges in two incidents involving his wife and mother-in-law then sought post-conviction relief based on a claim that he was under the influence of prescription medication at the time the plea was entered and he was misled by counsel as to the terms of the plea agreement and inadequately informed as to potential defenses of insanity and diminished capacity. Without the benefit of an evidentiary hearing, the Essex County Superior Court Judge denied the defendant’s petition. The defendant, while in a Marine Corp combat unit, suffered a head injury while skydiving which caused him to experience blackouts and he also claimed to hear voices. While incarcerated and awaiting trial at the Essex County Correctional Facility, a psychiatrist found the defendant to be confused. He was also placed on suicide watch while awaiting trial as well as medicated. A psychological evaluation to determine competency to stand trial resulted in the finding defendant was bipolar and suffering serious depressive disorder but competent to stand trial. A pre-trial psychological evaluation revealed that, when defendant regained awareness and realized he was choking the victim, he called 911 requesting assistance for her. It was opined that Njango could not have formed the purposeful and knowing intent required to find guilt, nor could the attack have been premeditated. The State’s psychiatrist found defendant to have an intact memory and incapable of meeting the criteria to utilize an insanity defense. The NJ Appellate Division, in State v. Njango, rejected defendant’s argument that he was under the influence of prescription medication however, the Appellate Division did find he had a colorable defense based on a medical report indicating he was suffering from dissociative disorder and major depressive disorder as to one indictment and as to whether the defense was raised, or even discussed, as to the second indictment. Neither of defendant’s plausible issues was raised at the time the plea was entered and no waiver of the insanity defense or other incompetency defense was discussed at the time of the plea. After review of the matter, the court decided to reverse the decision of the Essex County Superior Court Judge and remand for an evidentiary hearing. If you have been charged with criminal activity the impact of a guilty finding or plea can be devastating on your future. Although many individuals are well acquainted with their rights, there are complexities in the law that dictate individuals are best served by obtaining experienced counsel to represent them. For more information about burglary, weapons charges, defenses or other crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Multiple DUI and Driving While Suspended Charges in NJ

In a case involving 3 prior driving while intoxicated (DWI) convictions and 4 prior convictions for driving while suspended, a woman was charged with a 5th driving while suspended (DWS) charge. Such matters involving multiple prior events are forwarded from the municipal court to the county prosecutor’s office for resolution. The jury, in State v. Sharp, indicted the defendant on two counts of 4th degree driving while suspended and the defendant applied for pre-trial intervention (PTI). The defendant was accepted into the PTI program but the prosecutor objected to her entry based on her prior driving record which they found to reflect a lack of interest in rehabilitation and a pattern of disregard for the safety of other motorists and passengers. The defendant filed a motion for admission to PTI over the prosecution’s objection and the judge found in favor of Sharp, permitting her to enter the PTI program. In matters of PTI, the prosecutor has broad discretion in making the determination of whether defendants should be admitted. The standard for a judge to overrule the prosecution in requests for PTI admission is patent and gross abuse of discretion on the part of the prosecution. The state appealed the judge’s decision and the NJ Appellate Division found the judge to have erred in making the decision to overrule the prosecutor’s denial of admission to the PTI program. A guilty finding or plea in a DUI or other criminal matter can have substantial negative consequences on your future. PTI is a diversionary program which permits certain defendants to avoid more serious charges on their record and also is expungeable after a period of time. For more information about PTI, driving under the influence, driving while suspended, controlled dangerous substances (CDS) in a motor vehicle and other municipal and superior court criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Insanity Defense Does Not Require Bifurcated Trial

From the ruling in State v. Khan, 175 N.J. Super. 72 (App.Div. 1980) through the ruling in State v. Handy, a 2004 murder case in Paterson, NJ, the rule was that criminal defendants seeking to employ an insanity defense would have bifurcated trials in which their insanity defense was tried separately from any other defenses they may have. For the foreseeable future, criminal defendants will be forced to make difficult decisions, judges are going to have to give detailed explanations to juries about inconsistent defenses and juries will have to learn to compartmentalize the defenses presented and consider them separately. There is definite reason for concern on the part of defendants given the complexity of this approach for juries and the ease with which a judge may fail to properly instruct a jury. Robert Handy was charged with the January 2004 murder of his uncle Arthur Cooper who died from a single stab with a knife to the heart. Handy had a history of mental illness which included his hospitalization in psychiatric facilities. Handy also made the claim that his uncle was high on cocaine and hit him with a piece of metal pipe maintaining that the stabbing was in self-defense. Passaic County Superior Court Judge Joseph Falcone found that handy was not competent to stand trial after an insanity defense was presented and without being permitted to raise his self-defense claim, Handy was confined to a mental institution. Handy was thereby prevented from presenting the weapon he claimed his uncle used against him, a bloody piece of metal pipe partly hidden under a couch which the uncle was apparently next to when stabbed. The pipe had the words "King Reveal" painted upon it and the same words were tattooed on the uncle's body. Defendant appealed and sought the opportunity to present his self-defense claim. According to the ruling of NJ Appellate Division, a defendant does not have to raise an insanity defense first subjecting themselves to commitment to a mental institution. Alternatively, however, if defendants opt to utilize an alternate defense initially, they may not then utilize an insanity defense if their first defense fails. In making its ruling, the Appellate Court evaluated Khan in light of our State's Criminal Code and found it to be in conflict with several aspects. Additionally, the Appellate Division determined Khan to be contrary to the approach used in other states and based upon District of Columbia law that is no longer valid. Serious criminal charges are certain to have a lasting impact on your future. A guilty plea or verdict in a murder case, even to a lesser charge, will change your life forever through incarceration, loss of future opportunities and social stigma. If you are facing criminal charges, you should consult experienced criminal defense counsel immediately to begin preparing your defense. For more information about murder, weapons, drugs (CDS) or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

NJ Municipal Courts Prepare To Roll Out Diversionary Program

Until now, Municipal Court defendants accused of drug charges could apply for a Conditional Discharge and Superior Court defendants accused of other crimes could apply for Pre-Trial Intervention (PTI) but Municipal Court defendants accused of disorderly or petty disorderly persons offenses had no such opportunities available. Now, municipal courts are preparing for the new Conditional Dismissal program to take effect. Legislation was signed in September by Governor Christie to remedy the unfairness municipal court defendants faced as a result of the lack of a "second chance" program for certain minor offenses. Previously, the only thing that could be done was to downgrade disorderly or petty disorderly persons offenses to local ordinance violations which would still result in a criminal record for the defendants. Defendants who successfully complete the Conditional Dismissal program, including a year on probation, restitution to any victims, court costs, fines and other mandatory or discretionary assessments will not appear as a prior conviction for the defendants. Defendants are eligible for only one diversionary program in their histories. Meaning, if you have used a Conditional Discharge or PTI, you will not be eligible for a Conditional Dismissal. Additionally, if you utilize the Conditional Dismissal program you will not be able to use it again in the future. Additionally, defendants charged with DUI, gang activity, animal cruelty, offenses against the elderly, disabled or minors and official breach of public trust are ineligible for entry into the program. Those facing charges for controlled dangerous substances (CDS) in municipal court are eligible for a Conditional Discharge but not Conditional Dismissal. Criminal charges of any kind, even disorderly or petty disorderly persons offenses such as shoplifting or simple assault committed while young or during a lapse of good judgment can have significant and lasting impacts on your ability to enter certain schools, obtain certain professional licenses, obtain employment requiring public trust, security clearances and the like as well as the stigma that can accompany a criminal record. As a result of the way criminal charges can restrict your future opportunities, earnings, lifestyle and associations it is critical that you seek and experienced criminal defense attorney to assist you in any criminal charges you face, no matter how minor those charges may seem at the moment. For more information regarding Conditional Dismissal, Conditional Discharge, Pre-Trial Intervention, disorderly persons offenses, petty disorderly persons offenses, controlled dangerous substance, shoplifting, simple assault or other Municipal Court matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Drug Suppression Motion For Warrantless Search Denied

In State v. Salladino the defendant was indicted for 3rd theft of movable property (N.J.S.A. 2C:20-3) and 3rd degree possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a1). The defendant won a suppression motion relating to the Oxycodone found during the warrantless search by police. The prosecution filed an interlocutory appeal and the N.J. Appellate Court determined that, although the Oxycodone was found during a search of the defendant's person exceeding the scope of Terry v. Ohio, 392 U.S. 1 (1968), the drugs would have inevitably been discovered when the defendant was searched incident to the arrest for the robbery charges. According to the court's holding in State v. Sugar, 100, N.J. 211 (1985) if the evidence would have inevitably been discovered as a result of an independent and predictable circumstance, it remains admissible even if seized by other unlawful means. The Appellate division held that the suppression motion should not have been granted and remanded for further proceedings. Following a call from a robbery victim, police located 2 suspects in the vicinity matching the description given by the victim. The officer in charge of the investigation ordered that the suspects be brought before the victim for a show-up identification. Prior to transporting Salladino to the show-up, a police officer conducted a pat-down search of the defendant to ensure the defendant has no weapons. During the frisk, the officer felt a "hard bulge" and retrieved a pill bottle without a label or lid which contained 83 Percocet pills. The officer seized the pills but made no arrest regarding the Percocet. The suspects were positively identified by the victim during a show-up identification and they were arrested. At no time between the stop and the arrest could the defendant have removed the pills from his person without notice by the police, therefore, the Percocet would have been inevitably discovered during the search incident to arrest even though retrieving the pill bottle from the defendant's person exceeded the scope of a Terry stop as there was no reasonable basis to conclude the defendant was armed and the officer never claimed he believed the "hard bulge" was a weapon. If you are facing drug charges and believe evidence obtained against you may have been obtained in violation of your rights, you should consult with an experienced criminal defense attorney immediately. For more information about controlled dangerous substances, robbery, warrantless searches, CDS in a motor vehicle or other criminal issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Sexual Assault Sentence Requires Explanation

The defendant in State v. R.D. was convicted, in a non-jury trial, of 6 counts of 2nd degree sexual assault (N.J.S.A. 2C:14-2(b)) on his daughter C.D. while she was under the age of 13, 3 counts of 2nd degree engaging in sexual conduct that would harm, impair, or debauch the morals of a child while under a legal duty to care for her (N.J.S.A. 2C:24-4(a)) , aggravated assault on his daughter while she was under the age of 13 (N.J.S.A. 2C:14-2(a)(1), one count of 3rd degree terroristic threats (N.J.S.A. 2C:13-3a) to her if she disclosed the abuse and 1 count of 3rd degree attempt to cause or recklessly cause significant bodily injury (N.J.S.A. 2C:12-1(b)(7)) to C.D. The state presented witnesses on child sexual abuse. C.D. and the defendant lived in the same household from birth and the abuse became more invasive and frequent as she aged reaching a number of several times monthly and including penetration. Defendant failed to testify or present witnesses. The Bergen County trial judge sentenced defendant to an aggregate 70 year prison sentence which was subject to the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Defendant appealed based on the court's reliance on opinion testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) by the State's expert and errors and omissions in the judge's sentencing analysis. The NJ Appellate Division heard the appeal as to the errors and omissions but affirmed the convictions. Due to the trial judge's failure to make clear for which sentences were intended to be consecutive or concurrent, failure to set forth the Yarbough factors to justify any consecutive sentences and failure to specifically set forth any jail credits or "gap time" credits defendant may be entitled to the Appellate Division remanded for resentencing. If you are facing charges for sexual assault, endangering the welfare of a minor or similar charges, you should consult an experienced criminal defense attorney immediately. If you are convicted or plea to a sex crime in New Jersey, in addition to incarceration you face lifelong listing on a registry which can affect your ability to obtain employment, restrict where you may reside and generally have a negative impact on the remainder of your life. For more information about soliciting a minor, statutory rape, child molestation, internet crimes, child pornography or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Denying Defendant Access To Witnesses Results In Reversal of Robbery Conviction

In 2007, a convenience store robbery took place in which a man showed the cashier a gun hidden in his hooded sweatshirt and demanded the money from the register. The cashier identified a photograph of Daniel Blazas from a photo array shown to him by police the following day at the Sayreville police station. Defendant's ex-fiancee, Jennifer McHugh, provided police with a statement a couple of days after the robbery saying she received a call from defendant indicating he had robbed the "Indian store." Defendant was charged with first-degree armed robbery (N.J.S.A. 2C:15-1); 3rd degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(b)); 2nd degree possession of a weapon for unlawful purposes (N.J.S.A. 2C:39-4(a)); 4th degree aggravated assault (N.J.S.A. 2C:12-1(b)(4)); and 3rd degree theft (N.J.S.A. 2C:20-3). Defendant filed, among other motions, a motion to dismiss the indictment based on bias based on the misconduct of the prosecution in preventing the defense from speaking with Ms. McHugh directly or Sayreville police officers. After certain denials on the part of the prosecution, the trial judge denied defendant's motion. On the appeal of State v. Blazas, the court held that a defendant's right to due process is violated when the government substantially interferes with defendant's ability to present a complete defense. The Constitution guarantees criminal defendants the right to a complete defense which includes access to evidence the prosecution has whether said evidence is negative or favorable according to the Court in State v. Garron, 827 A.2d 243 (2003). In Blazas, the denial of access to witnesses by the prosecution was held to be conduct in violation of defendant's due process rights and requiring reversal of the defendant's conviction. If you or a loved one have been charged with a crime and believe a critical issue in the case will be witness testimony, you should consult with an experienced criminal defense attorney to ensure your rights are protected. A criminal record can have substantial impact in both the short and long term. In the short term, you may be facing prison, jail, drug court, rehabilitation or probation and in the long term you may face inability to obtain employment, denial of educational opportunities, loss of professional licenses, discrimination, registration as a sex offender or other embarrassing and limiting consequences. For more information regarding robbery, burglary, weapons offenses, assault, drug charges or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Client Expectations In Criminal Matters

Many accused of criminal activity based on their affiliations with certain entities and organizations of which law enforcement agencies take a negative view have heard, or even worked with, attorneys fabled for the extremes to which they will go on their client's behalf. In the past, the methods employed by such attorneys may have been effective but technology has advanced and most recently led to the sentencing of Paul Bergrin the former assistant Essex County prosecutor, assistant U.S. Attorney in Newark and then private practitioner. Mr. Bergrin had a very successful practice and was frequently selected by noteworthy clients due to the tactics he employed once retained as defense counsel. Mr. Bergrin offered those clients willing to pay the price such services as assistance in arranging witness murders, other methods of resolving witness issues and creating positions at his law firm to assist in the operation of illegal enterprises like call girls and cocaine distribution rings. Mr. Bergrin was convicted to 6 life terms by U.S. District Judge Dennis Cavanaugh. Law enforcement was so intent on the termination of actions taken by Bergrin that U.S. District Judge William Martini, originally assigned to the case, was replaced by Judge Cavanaugh after Martini dismissed 3 RICO counts against Bergrin as well as granting other relief sought by the former defense attorney. This is a message not only to defense attorneys but also to those accused of crimes in regard to what is not acceptable in criminal defense. Although the actions of Paul Bergrin clearly spun out of control as a result of the exorbitant amounts clients were paying for his services, the reality is that clients should not anticipate that their attorneys will employ illegal tactics in their defense. When consulting counsel if you have been accused of a crime, it is the responsibility of the client to advise the attorney of witnesses or alibis favorable to the defendant, physical coercion of co-defendants or law enforcement as an inducement to commit the offense and any other proof demonstrating innocence. You should expect your attorney to zealously advocate on your behalf and to present all evidence which tends to prove your innocence. Defendants should anticipate that motions to suppress will be filed to prevent the prosecution from using any evidence obtained in violation of the defendant's rights. There are methods which should be employed by experienced criminal defense attorneys to protect your rights and obtaining experienced counsel to protect your rights is critical. For more information regarding criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

NJ Robbery Matter leads To Another Jail Credit Decision

In a case stemming from two separate robberies in Essex County, allegedly committed by Amerigo Rodriguez, the NJ Appellate Court considered the manner in which jail credits accrue. Rodriguez pled to two 2nd degree robbery charges and was sentenced to two consecutive 10 year terms, each of which carried an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Before a parole detainer was lodged against Rodriguez, he received 4 days of jail credit on one judgment of conviction and none on the other. Rodriguez appealed the decision regarding jail credit and the NJ Appellate Division, in State v. Rodriguez, reviewed the facts in light of other NJ cases in which parole detainers were lodged against defendant's awaiting disposition of other charges. In State v. Harvey, 273 N.J. Super. 572 (App. Div. 1994), Harvey was charged with 3rd degree possession of cocaine with intent to distribute within 1,000 of a school zone and 3rd degree conspiracy to distribute cocaine. The Harvey court considered Rule 3:21-8 to uphold a decision that defendant would receive only 3 days of jail credit for pre-sentence custody. In Harvey, the Appellate Court reasoned that, had the defendant bailed out on the new charges he would have remained in custody due to the parole violation and therefore no jail credits would accrue on the new charges. In State v. Black, 153 N.J. 438 (1998), a case commonly cited to when courts are considering jail credits, the NJ Superior Court held that any confinement served as a result of a parole warrant did not qualify in the accrual of jail credits during the pendency of sentencing on later matters. Ultimately, the guidance of prior decisions led to the court's affirmation of the decision below in Rodriguez If you are facing criminal charges in New Jersey while under supervision for other charges, the view the prosecution or finder of fact may take of you and the final sentence you may receive are likely to be affected by the prior supervision issue. It is imperative that you seek experienced criminal defense counsel when facing any charges against you and prior supervision only serves to complicate your matter by magnification of any negative issues the prosecution can find against you. For more information about robbery, burglary, drug charges or other serious criminal or municipal court offenses in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of legal counsel.

DUI Discovery Rules Apply To Defendants, Not State

Right to speedy DUI trial, as long as the state wants one, and the right to know the evidence the state will use against you but anything they leave out will be admissible later. Hardly sounds fair right? In State v. Wolfe the defendant was convicted of driving while intoxicated based only on his Alcotest result. The DUI was the second for defendant, carrying harsher penalties. The state failed to provide discovery, including the Alcohol Influence Report (AIR) which includes machine test blanks, defendant’s test times, breath sample quantities and provides the defendant’s blood alcohol content (BAC) level to determine whether defendant is over the legal limit of .08%. At the time the trial began Wolfe, not having received the results of his breathylizer test, believed the trial would be based only on the observation of officers on the scene of the arrest regarding his balance, coordination and ability to process information mentally. Midway through the trial the state provided the results and defendant was convicted of per se driving under the influence based on the Alcotest result. The New Jersey Appellate Division affirmed the conviction because defendant suffered no prejudice as a result of the delay and the state’s failure to submit the document was an error and not intentional. By way of contrast, if the defendant failed to provide notice of exhibits or witnesses, was not ready to proceed or otherwise sought to alter the standard procedure in the trial of the matter it is unlikely, based on experience, that judges would allow for such measures by defendants. Driving under the influence of alcohol or drugs in New Jersey can have serious and lasting consequences including the loss of license which limits freedom, can preclude you from certain jobs or other opportunities, bears substantial fines and penalties including the possibility of an interlock device being installed in your vehicle and even jail time. If you are charged with DUI, you should consult an experienced attorney immediately to provide you with the best defense possible and ensure your rights are protected. For more information about DWI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving while suspended or other serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Eyewitness Identification And Criminal Defense

In State v. Henderson, 27 A.3d 872 (N.J. 2011), an indictment for first degree murder was issued by a grand jury and the defendant was ultimately convicted of manslaughter, aggravated assault, and weapons charges after a jury trial in which much weight was placed on an eyewitness identification. In the underlying matter, a man was shot and killed while another, who had been smoking crack and drinking wine, was held at bay in another room by an armed accomplice. The accomplice was identified by the man he held at bay during a photo lineup in the police station 13 days after the shooting. A Wade hearing was granted to determine the admissibility of the eyewitness ID and applied the Manson/Madison test to determine whether the criteria were met. The trial court decided the ID procedure implemented by the police was not impermissibly suggestive nor did it imply a very substantial likelihood of irreparable misidentification and the eyewitness ID was admitted. The New Jersey Supreme Court considered factors which may affect an individual's memory and divided them into lineup procedures, controlled by police, and estimator variables, including the witnesses age, lighting, lapse of time between the event and ID as well as other similar variables over which the police have no control. The defendant has the initial burden of showing police procedures were "impermissibly suggestive." Unless there is irreparable harm, the court should present the jury with appropriately tailored instructions. The lineup, 13 days after the crime, was presided over by a detective other than the primary investigator, the eyewitness did not make an ID until told by the police to "do what he had to do" so they could be finished and the eyewitness testified he felt pushed to selecting the defendant from the lineup presented. The Court held that suggestive comments of the investigating officers during the identification procedure were substantial enough to entitle Henderson to a pretrial hearing and remanded the case for a hearing that weighs all system and estimator variables, meaningfully deters police from suggestive procedures, permits jurors to knowledgably evaluate the effects of factors on memory and flexible so as to guarantee fair proceedings. Eyewitness identification procedures are exceedingly fallible. If you have been charged with a crime as a result of eyewitness identification, there are multiple ways to attack the state's case against you and it is critical that you obtain an experienced criminal defense attorney immediately to protect your rights. For more information regarding aggravated assault, weapons charges, drug charges and other criminal matters in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alcotest to Stay For Now In NJ

The New Jersey Supreme Court has ruled that, for the time being, the Alcotest, the chemical test formerly known as the Breathylizer, given to drivers arrested for Driving Under the Influence (DUI) to test their blood alcohol content (BAC) or alcohol to blood ratio, will stay after much debate. For months there has been much discussion of the possibility of dispensing with the Alcotest as a result of the State's failure to comply with the ruling in State v. Chun, 194 N.J. 54 (2008), the monumental case pertaining to the implementation of the Alcotest in place of the Breathylizer and wheher the Alcotest was scientifically reliable as a means of measuring BAC levels. In Chun, the NJ Supreme Court held the Alcotest to be scientifically reliable at the time and that, with the nine software revisions to be implemented over time by the manufacturer, Draeger, it would remain reliable. The recent litigation was over the fact that Draeger never did the software updates and a database that set up to store information regarding Alcotest device logs, including service dates and test results, which attorneys could use in trying DUI matters in the event of errors or discrepancies with machine results. In the past two years there have been an increasing number of people questioning the reliability of the device based on errors in the database and lack of software updates. The result of unreliable machine or data could be a significant detriment to those facing charges of driving under the influence. The NJ Supreme Court has now made it clear that they are deeming the machine to be reliable yet intend to replace its use in the State of New Jersey within the next 3 years. The court expressed that if a suitable replacement can be found they will consider the device, however, in spite of the Courts reversal of it's own prior requirement for updates and database maintenance, with the three years ahead on them there is no rush. DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury. If you are charged with a DWI in NJ you should seek an experienced attorney immediately to protect your rights. For more information about DWI, DUI, possession of a CDS in a motor vehicle, reckless driving or other serious municipal court or traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Domestic Violence Statutes Protect Unborn Children

Pregnant women who have been victims of domestic violence in New Jersey can get restraining orders on behalf of their unborn children pursuant to an Ocean County Superior Court Judge's ruling in May. Generally, the laws of New Jersey do not bestow unborn fetuses with any legal rights. As New Jersey law exists, a person does not typically receive any civil rights until they are born and become a legal "person." Judge Lawrence Jones's ruling in a recent domestic violence case seems to change the status of the law with regard to the rights of unborn children. Before his ruling, a pregnant woman who was awarded a restraining order against an abuser would have to wait until her child was born to seek an additional restraining order to protect the newborn child. Judge Lawrence ruled that women who are already seeking a restraining order for themselves should not have to wait until their child is born to petition the court to grant an additional restraining order on behalf of the child. Although, in his opinion, the Judge opines that the child's restraining order begins to take effect only after birth. In his written opinion, Judge Lawrence states that the last place a victim of domestic violence would want to go upon giving birth, is to a courthouse to protect their newborn baby. The case before the Judge involved two teenagers from Ocean County. The 18 year old male was continuing to abuse his pregnant 17 year old girlfriend during her pregnancy because he disagreed with her choice to keep their baby. The Judge's ruling begins to spark the debate as to whether New Jersey courts should begin to expand the rights of unborn children and it is yet unknown how this ruling will affect the rights of the unborn. This Judge was cautious to note that the restraining order for the child only becomes effective at birth, so it seems as if his ruling has more of a procedural impact than a substantive one. Yet, it does provide victims of domestic violence with an additional safeguard in the protection of themselves and their children. If you have been charged with or are the victim of domestic violence you should consult an experienced criminal defense attorney to ensure your person and your rights are protected. For more information regarding domestic violence, assault, divorce or other criminal or family law matters in New Jersey HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI: Newly Proposed Bill Regarding Blood Samples

A controversial bill is currently being reviewed by the New Jersey Legislation could have a great effect upon automobile accidents involving driving under the influence (DUI). The bill, A-4464, is proposing that any accident that results in a fatality would subject drivers of the vehicles involved to mandatory blood testing for both illegal drugs and alcohol. Currently, under New Jersey state law, police are required to have probable cause to believe the driver is under the influence in order take a blood or breath sample from a driver of a vehicle. In addition, the bill would impose the same penalties and suspension of a driver’s license for refusing a blood test as they would for refusal of a breath test. Some defense attorney’s throughout the state do not believe the proposed bill will pass on a constitutional basis. In a United States Supreme Court case decided in April of this year, the court held that there is a requirement of law enforcement to obtain a search warrant or consent in order to extract blood from driver to test for alcohol. Prosecutors throughout the state generally believe that the bill would permit them to perform the justice they believe is needed in cases of vehicular manslaughter committed by drivers under the influence of drugs or controlled dangerous substances (CDS). Prosecutors will likely seek to extend the bill to accidents that result in serious injury. The bill will not be heard and voted on by the state legislature until the next legislative session in November. DWI in NJ will have a serious impact on your life including loss of license for up to 10 years, thousands of dollars in fines and penalties and can have significant implications in related matters such as later personal injury. If you are charged with driving while intoxicated in NJ you should seek an experienced DUI attorney immediately to protect your rights. For more information on DUI, possession of CDS in a motor vehicle, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

School Zone Drug Distribution And Plea Agreements

In State v. Gerns, the New Jersey Supreme Court set forth certain principles pertaining to plea agreements. Gerns was indicted for 3rd degree distribution of marijuana within 1,000 feet of school property (N.J.S.A. 2C:35-7); 3rd degree possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5a11 and N.J.S.A. 2C:35-5b(11); 3rd degree possession of marijuana with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7) and two counts of 4th degree distribution of marijuana (N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12). The plea required cooperation with police in the apprehension of other drug offenders in exchange for softer sentencing. The Confidential Informer Contract called for a reduction in the defendant's sentence based on the degree of cooperation received by the prosecutor. Gerns made efforts to cooperate but was unsuccessful as his arrest was known the others and he was assumed to be an informant and the prosecutor withheld any positive recommendation due to Gerns failure to offer valuable information. Gerns appealed the sentence as it was far in excess of the term promised in the plea agreement. The New Jersey Appellate Division found that the prosecutor acted in an arbitrary and capricious manner and remanded for resentencing. The Comprehensive Drug Reform Act of 1986, N.J.S.A 2C:35-1 to 36-9 (Drug Act) includes provisions for the protection of children from dealers in school zone cases and carries a presumption of mandatory imprisonment. However, a provision is also included, N.J.S.A. 2C:35-12, giving prosecutors authority to recommend lesser sentences in exchange for cooperation with law enforcement. Because of the great discretion given prosecutors, there is potential for abuse as well so prosecutors are required to place the reasons for their sentencing recommendations on the record at sentencing. The State defined cooperation as assistance from defendant resulting in valuable information to the State and refused to waive any mandatory minimums while Gerns argued he made a good faith effort to cooperate and also that the plea agreement did not define cooperation nor was the plea agreement specific as to the sentence it would recommend for cooperation. The state is required to define cooperation so the defendant's plea may be voluntary, knowing and intelligently provided. A defendant is required to disclose all criminal activities known to them and partial performance may be considered if of tangible benefit to the prosecutor. It the prosecutor fails to reduce the sentence offered, the defendant has the right to explain the result in an effort to demonstrate the prosecutor's decision was arbitrary and capricious. In Gerns, the NJ Appellate Division held that, when there is a reasonable misunderstanding, the defendant may 1) withdraw the guilty plea; 2) have a hearing to determine the level of benefit the state obtained from defendant's cooperation; or 3) negotiate another plea. If you are facing criminal charges and believe a plea agreement is in your best interest, you should always review any agreement with an experienced criminal defense attorney to insure you are protected by its terms. Additionally, if you have accepted a plea under certain beliefs only to later find the prosecution was not offering what you thought or is now trying to modify the terms of the bargain you should consult with an attorney to protect your rights. For more information about plea offers, possession, distribution, distribution in a school zone, intent to distribute, drug charges or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

How High Should Bail Be To Insure Defendant's Appearance

In State v. Steele, 61 A.3d 174 (2013), Defendant Tyrone Steels appealed from the order of the Passaic County Superior Court denying his motion to reduce bail on two indictments for fourth degree offenses. Bail was set at $150,000, cash only, for 6 counts of lewdness, N.J.S.A. 2C:14-4b(1), and $50,000, no 10% option, for violating a condition of community supervision for life (CSL), N.J.S.A. 2C:43-6.4d for failing to report arrests to his parole officer and refrain from initiating contact with a minor. The Defendant pled guilty to 1st degree kidnapping, robbery and attempted sexual assault under separate indictments from Bergen and Passaic in 1997 and was incarcerated until 2010 when released subject to CSL and Megan's Law. The charges relating to the challenged bails occurred while defendant was on bail for prior violations of CSL. The State's plea offer included recommendations of 2 concurrent 18 month terms for the lewdness charges which would run consecutive to 3 concurrent 18 month charges for the community supervision violations charged. The NJ Appellate Division reviewed the Superior Court Judge's denial of the bail reduction motion and found that the trial court was incorrect in its consideration of the safety of the community when setting the bail amount for the two 4th degree offenses in excess of the $2,500 maximum set forth in N.J.S.A. 2C:6-1. In order for bail to have been set at $150,000, cash only, and $50,000 no 10%, there would be a necessary showing that defendant's release on bail constituted a serious threat of destruction of evidence by defendant or danger to witnesses. In spite of the fact that the bail amounts set were excessive, the defendant faced exposure to sentences significantly longer than typical for the underlying offenses and bail in excess of the $2,500 maximum was appropriate and necessary to ensure the defendant's appearance at trial. If you are arrested and facing bail, it is critical you secure your release so you can continue to work and can participate in your own defense. However, bail is often high and many are forced to incur financial hardship through non-payment of other expenses to meet bail or pay fees to a bondsman in order to obtain their release. An experienced attorney can often obtain a decrease in your bail amount so you are free to return to your job and family and are better able to assist in your defense. For more information about bail reduction, bail setting or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.

Distribution of Drugs in a School-Zone May Not Bar Drug Court

In a recent case involving 3rd degree distribution of a controlled dangerous substance (CDS), marijuana, in a school zone a defendant was denied admission into the Drug Court program and appealed. Mike Pope appealed the decision of the Sussex County Superior Court Judge based on the misapplication of the standard for ordinary probation to deny him entry into Drug Court, based on a school-zone offense, while N.J.S.A. 2C:35-14 allows school-zone offenders to be sentenced to Drug Court probation. The statute permitting entry into Drug Court applies as long as the transaction occurring within the school-zone does not involve distribution to a minor. Mark Pope pled guilty to distribution in the parking lot of Vernon High School under a negotiated settlement agreement which contemplated defendant's intent to apply to Drug Court. The Sussex County prosecutor argued that Pope's violation of N.J.S.A. 2C:35-7, involving distribution within 1000 feet of a school-zone, served as an automatic bar to defendant's entry into Drug Court. Defendant's appeal, in State v. Pope, asked the NJ Appellate Division to reconsider Pope's application to Drug Court based on the requirements of track 1 or 2 for admission. Track 1 being the commission of a crime subject to a presumption of mandatory incarceration and the satisfaction of 9 factors. Typically this is reserved for 1st or 2nd degree crimes and is done with the consent of the prosecutor. Track 2 is typically applied to those with ongoing drug habits who have not committed any form of violent offense. The NJ Appellate Judges held that the trial court misapplied the statute and remanded the matter for consideration under the appropriate criteria. A drug related conviction in NJ can have serious and lasting consequences including prison, loss of license, substantial fines and the stigma of the conviction or plea can result in the loss of certain employment or educational opportunities. If you are facing charges of use, possession or distribution of CDS including marijuana, meth, oxy, heroin, xanax or other drugs, it is critical you consult with an experienced criminal defense attorney immediately to protect your rights. For more information about prescription or non-prescription drug charges for use possession or distribution, gang-related drug charges, controlled dangerous substances in a motor vehicle, DUI and other criminal and serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Additional Charge In Sexual Assault On Minor Does Not Always Mean More Time

Although he did not escape guilt, the defendant did receive a reduced sentence for charges of first degree aggravated assault, second degree sexual assault and second degree endangering the welfare of a minor in State v. W.L. Following a jury trial, the defendant was sentenced to 15 years imprisonment with an 85 percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the crime of 1st degree sexual assault into which the crime of 2nd degree sexual assault was merged. The defendant was also sentenced to 7 years for endangering the welfare of a minor to be served consecutively to the 15 years for the other charge. When sentencing, a Judge may count aggravating factors only once and must apply a Yarbough analysis when imposing an excessive sentence. The judge in State v. W.L. applied aggravating factors 2 (gravity of the offense), 3 (risk defendant will commit another offense) and 9 (the need to deter such activity) and mitigating factors 7 (defendant's lack of criminal history) and 8 (the likelihood the defendant's behavior will recur). An essential element of the conviction for aggravated sexual assault was the child's age and finding of an aggravating sentencing factor cannot be based solely on an essential element of the crime charged. Additionally, the sentencing Judge failed to apply the appropriate standards from State v. Yarbough, 100 N.J. 627, 643-644 (1985) in determining whether to impose a consecutive sentence for count 3, endangering the welfare of a minor. If you are facing charges for sexual assault, endangering the welfare of a minor or similar charges, you should consult an experienced criminal defense attorney immediately. If you are convicted or plea to a sex crime in New Jersey, in addition to incarceration you face lifelong listing on a registry which can affect your ability to obtain employment, restrict where you may reside and generally have a negative impact on the remainder of your life. For more information about soliciting a minor, statutory rape, child molestation, internet crimes, child pornography or other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Texting A Driver Can Bring Liability In NJ

A recently decided court case could change people’s behavior in respect to texting friends who are driving. Kubert v. Best has created a new potential liability for the sender of a text message to a driver who is involved in an accident. Best, the driver of the vehicle in the case was sent text messages by Shannon Colonia, a friend, when he caused an accident with a motorcycle in which both people on the motorcycle lost their legs. While the driver has the ultimate responsibility for avoiding distractions while behind the wheel, the court deemed that like a passenger who must avoid distracting the driver, a sender of the text message must do the same. Liability for accidents involving the sender of a text message can vest when the person sending the text to the driver knows the recipient of the message is behind the wheel. It is almost akin to an accomplice liability where the texter can be liable if they had knowledge of the driver's actions through continued exchange of texts. In this case the claim of liability against Colonia, the sender of the text message, was dismissed due to the lack of evidence regarding her knowledge of Best being on the road. This could however create a new cause of action for parties involved in accidents due to driving while texting. This new crime can carry a one hundred dollar fine for a first offense and up to a six hundred dollar fine with a 90 day loss of license for a third offense. This case could potentially have created precedenct on future personal injury liability cases involving texting while driving, however we will have to wait and see. Municipal and Traffic Court offenses in NJ will have a serious impact on your life and can have significant implications in related matters such as personal injury. If you are charged with municipal or traffic court violations in NJ you should seek an experienced attorney immediately to protect your rights. For more information about use of a cell phone while driving, driving under the influence, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Bail Forfeiture Factors Under Hyers

State v. Cain was a case in which the defendant, out on bail, was tracked and found out of state by the bondsman who then returned Cain to New Jersey to face prosecution. The court retained a portion of the defendant's bail but did not show adequate reasons for doing so under the Hyers factors and the judiciary's guidelines. The matter was reversed for adequate findings. State v. Thomas was a New Jersey case in which the law division vacated bail forfeitures by the city of South Amboy due to the judge's failure to consider the guidelines or the Hyers factors and using a balancing test of sorts instead. The factors set forth in State v. Hyers are whether an applicant is a commercial bondsman; the surety's supervision over the defendant; the surety's efforts to ensure the return of the fugitive; the time elapsed between the missed court appearance and the return to court; the prejudice to the State because of the defendant's absence, if any; expenses incurred by the State; and whether reimbursement of the expenses would adequately satisfy the interests of justice. If your friend or loved one is in jail, the first thing on their mind is getting out so they can go home, keep their job and meet with a lawyer to assist in their defense. Before paying whatever the court asks or paying a high fee to a bail bondsman, you should contact an experienced criminal defense attorney immediately to reduce or eliminate bail leaving your friend or family member with more funds to fight their case in court. For more information about bail, guns, drugs, assault or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Defective Warrant Must Result In Suppression Of Evidence

A Defendant filed a motion to suppress controlled dangerous substances (CDS) found during an illegal search in which a search warrant had allegedly been issued. The signature on the warrant was illegible, the signature line simply stated "JUDGE OF THE" and offered not even the Judge's written name. The Detective present at trial in the event there were questions about the warrant but the detective was not the affiant when the warrant was obtained. The State argued that the warrant was to be presumed valid and that the burden of proof was on the defendant to prove the search warrant invalid in defendant's motion to suppress evidence of an illegal search. The judge concluded that, pursuant to Rule 3:5-7(g), absent any bad faith she was bound to uphold the validity of the warrant and denied the motion to suppress. The NJ Appellate Division found, in State v. Riles, there was insufficient evidence to find the warrant was issued by a neutral judge and permitted the defendant to withdraw a guilty plea entered subject to appeal. Although there are restrictions on the manner in which police are to operate in securing evidence they believe to exist, searches are often faulty based on flawed warrants, failure to obtain warrants or other illegal and unscrupulous search methods. If you were arrested following a search in which illegal drugs, weapons, money or other substances were found on your person or in your vehicle, residence or other place which was under your control at the time, you should consult an experienced criminal defense attorney immediately to ensure your rights are protected. For more information about search and seizure, drug charges, gun charges, assault, burglary or other criminal offenses in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

NJ Governor Signs In New Gun Control Laws

Last Thursday New Jersey Governor Chris Christie signed ten bills looking to strengthen gun control and upgrade penalties for those who are arrested for unlawful gun possession throughout the state. These gun control measures were introduced in the state senate after the tragic shooting that took place December 14th, 2012 at the Sandy Hook Elementary School in Newtown, Connecticut. The series of newly signed bills is designed to create a safer and more well monitored system for the purchase and sales of all firearms throughout the state. Along with making the system more safe these bills are also going to make punishment crimes involving guns more harsh. One of the significant bills signed by the governor was the Anti-Gun Trafficking Act of 2013. This act focuses on the illegal transfer and sale of firearms across state lines. Many believe one of the most significant ways to cut down on illegal gun possession is to stop it at its source, which is by way of illegal sales from sources outside of New Jersey. For those who are convicted of transporting guns into New Jersey for illegal purposes under the Anti-Gun Trafficking Act of 2013, the crime is considered one of the second degree, meaning that there is a minimum of five years incarceration, which is not within the discretion of the sentencing judge. For those who presently own an illegal weapon there is a grace period of six months to dispose of the firearms before being convicted or punished. Unlawful possession of a firearm in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or other criminal charges. Given the serious implications of weapons charges it is critical that, if you are charged with illegal gun possession or trafficking in NJ, whether knowingly or unknowingly, you should seek an experienced attorney who can immediately begin preparing your defense. For more information about robbery, gun possession without a permit, possession of weapons for an unlawful purpose, illegal weapons or other serious matters stemming from gun use or possession in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney in your matter.

Effects of Certain Medical Treatments on DUI Prosecution

Driving under the influence is illegal no matter whether the driver is under the influence of heroin or something prescribed to them by a doctor. Many people get behind the wheel of a car daily while taking under treatment for drug addiction. These drivers are under the mistaken belief that, because they are receiving legally acceptable medical treatments, they are immune from prosecution for consequences stemming from the treatments. Although these drivers may not be under the influence of the drug on which they are dependent, they are still under the influence for the purposes of driving in the event the methadone treatments they are receiving are seriously impacting their ability to drive. Methadone may cause hallucination, low blood pressure, blurred vision and other negative side effects which would impact an individual's ability to drive. Although the under the influence component in such an offense would not be intentional, anyone making this mistake could still be found guilty of DUI based only on their impairment. This a long standing principle of law in NJ and was considered by the NJ Supreme Court in State v. Tamburro in 1975. DUI in NJ is a very serious matter with long lasting consequences including hefty fines, loss of driving privileges, possible loss of professional licenses and inability to obtain certain jobs or entry into certain educational institutions. A conviction for driving while intoxicated cannot be expunged and will remain on your record forever. If you are facing charges for DWI you should contact an experienced DWI attorney immediately to protect your rights. For more information on DUI, DWI, controlled dangerous substances (CDS) in a motor vehicle or other serious motor vehicle offenses visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Driving While Suspended May Result In Extending Your Suspension

Many New Jersey motorists are stopped on a daily basis for routine traffic offenses only to find out their license is suspended. In many cases, the drivers are suspended for failure to pay a parking ticket, failure to pay New Jersey Motor Vehicle Commission (NJMVC) fines or other administrative reasons. On the other hand, the drivers have been suspended for other reasons such as prior driving while suspended charges, driving under the influence, controlled dangerous substances (CDS) in a motor vehicle or other drug offenses. No matter the reason, driving while suspended can cause an extended loss of your license that you may not have anticipated prior to that routine traffic stop. Violating N.J.S.A. 39:3-40, the NJ statue relating to driving while suspended, carries monetary fines as well as a potential loss of license depending on the circumstances. For first offenders, drivers will have a fine of up to five hundred dollars as well as a surcharge of two hundred and fifty dollars to the NJMVC each calendar year. For second and third time offenders, the fines for driving while suspended increase up to seven hundred and fifty dollars and one thousand dollars respectively. Second and third offenses can also carry from five to ten days imprisonment. Having an experienced attorney can greatly benefit those drivers who are trying to maneuver through these violations with little or no penalties for them to face when their day in municipal court approaches. Those who drive while suspended for driving under the influence face greater penalties. Those drivers can be fined up to an additional five hundred dollars and lose their license for at least one year but not more than two years in addition to suspension period levied during their DWI sentencing. If you are pulled over and are told your license has been suspended, it may be a simple mistake on the part of the NJMVC. However, you do not want to take that for granted due to the consequences and must appear in municipal court with proof the matter has been resolved or you will be subject to the same penalties as if your license was actually suspended. Driving while suspended in NJ carries serious penalties and should not be taken lightly. If you are charged driving while suspended in NJ you should seek an experienced attorney immediately to protect your rights. For more information on municipal court, DUI, CDS in a motor vehicle or other serious drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney.

Community Caretaking Is No Exception To Warrant Requirement

Although there is a governmental right to enter a residence, under certain circumstances, for community caretaking functions such entry is not permitted without a search warrant barring exigent circumstances. The community caretaking function permits agents of the state, including police, to enter and search a residence under the pretext of concern for the residents' health and safety. In State v. Vargas, a landlord contacted police and expressed concern that he had not seen the tenant, Vargas, for several weeks nor had he received rent due from Vargas. The landlord knew nothing about Vargas' schedule, habits, family or whether he may have been on vacation. There was no reason for the landlord to believe there was an emergency and no reason the police could not have waited to obtain a warrant before entering Vargas' apartment. However, when police responded to the landlord's call, the landlord opened the door with his keys and the police entered. In plain view, the police found a jar of marijuana when they entered the apartment. Upon the finding of marijuana, the landlord began searching the apartment and found more marijuana. The police then obtained a search warrant and recovered $47,001, guns, ammunition, white powder, scales and additional marijuana. The NJ Supreme Court held there was no reason the police could not wait to apply for a warrant before undertaking the search in the absence of exigent circumstances. The NJ Supreme Court's holding in Vargas specifically included that the community-caretaking doctrine, standing alone and in the absence of some form of exigent circumstances, does not allow the police to conduct warrantless searches of homes. The State cannot use evidence against you if the evidence was obtained illegally. If you are facing charges based on an illegal search and seizure of your residence, vehicle or person you should contact an experienced criminal law attorney immediately to protect your rights. For more information on warrant requirements, drug charges, weapons charges, assault or other criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is not intended to replace the advice of an attorney.

Changes to NJ Driving Without Insurance Penalties?

A Bill, A-1844, proposed by the NJ State Assembly would change the penalty for driving without insurance in the state of New Jersey. Presently, driving without insurance carries the heavy penalty of loss of license for a period of 1 year from the date of conviction or plea. Often those driving without insurance are unaware their insurance is expired. Perhaps they have moved and the bill comes only once a year to an old address, there may be a former spouse or partner withholding mail or the person may forget to update the automatic payment when changing accounts. Because of the many reasons other than willful intent to drive without insurance that people commit this offense, the Assembly has proposed offering municipal court judges the opportunity to consider the reasons presented by the offender when meting out punishment. If this bill passes, municipal court judges will be given discretion in deciding whether an individual's license should be suspended and, if so, permits the judge to mete out a suspension of between 2 months and 1 year. Presently, in addition to mandatory suspension, there is a fine of between $300 and $1,000 and a period of community service to be determined by the court. The Bill does not apply to subsequent offenses which call for a fine of up to $5,000, incarceration for a term of 14 days and 30 days of community service along with the loss of driving privileges for a period of 2 years from the date of conviction or plea. If you are facing a charge of driving without insurance in NJ you should seek experienced legal counsel to protect your rights. For more information about driving while suspended, DUI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in New Jersey visit www.HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Parents Potentially Liable for Underage Drinking

It is likely you have heard the stories of parents being arrested for providing alcohol or a location for underage drinking to take place. There are many misconceptions as well as doubts that parents should or can be held liable for teenagers drinking together. Regardless of your opinion, New Jersey has laws establishing strict liability and punishments if one would be convicted. Providing alcohol to any persons under twenty-one can carry a punishment under N.J.S.A 2C:33-17a of up to 6 months in jail and as much as $1,000 in fines. Allowing underage drinking to take place on private property carries the same penalty as providing alcohol to minors. Some adults believe that by allowing teenagers to drink under their supervision they are making a responsible decision that could potentially save lives from being lost as a result of the teens driving while intoxicated. While this may be true, adults must also see the potential position of culpability they may be putting themselves in. Whether parents are at home or away while the underage drinking is taking place there is a potential to be held liable for the actions of underage drinkers. Even when simply leaving their children home for a weekend, if parents do not find suitable supervision they may be seen as negligent and therefore liable. Teenagers and their parents can seek damages against adults who permit the teens to drink in the event they incur medical bills, property damage or other forms of pain and suffering. Although in other countries alcohol is viewed differently and children often enjoy wine with meals, that is not the case in our society and the laws do not allow it. Allowing your children to drink can subject you to liability for damages and harm to others as well as having your children removed from your home for negligent parenting. Allowing other underage drinking, even under your supervision, can subject you to criminal penalties. Underage Drinking and allowing underage drinking in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or other criminal charges. If you are charged with underage drinking, providing alcohol to a minor or allowing underage drinking in NJ you should seek an experienced attorney immediately to protect your rights. For more information on DUI, possession of a CDS in a motor vehicle or other serious motor vehicle charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

How Likely is Jail in NJ Careless Driving Cases?

Under the NJ careless driving statute (N.J.S.A. 39:4-97), in addition to monetary penalties, offenders can be sentenced to jail. Until now, jail has been a very infrequent consequence of careless driving charges. However, the NJ Supreme Court is considering the criteria for sending careless drivers to jail. State v. Palma involved a driver who hit a pedestrian and dragged her down the road with the vehicle unknowingly. The pedestrian later died from her injuries. An investigation revealed Palma was not intoxicated and was not using a cellular phone while driving. The Judge sentenced Palma to 15 days in jail as a penalty for careless driving in addition to suspending her license. The Court considered the factors in State v. Moran, 202 N.J. 311 (2010) which include the nature of the conduct, the risk of harm, any harm actually caused and the drivers prior record. The Moran principles set forth considerations for suspension in the event of reckless driving and have no bearing on jail terms for careless driving. The NJ Appellate Division held the Moran factors to be acceptable in the determination of whether to impose a jail term for careless driving. The NJ Supreme Court accepted the prosecutor's appeal and is now considering the criteria for sending careless drivers to jail. Depending on the court's decision, jail for careless driver may be a mechanism used by prosecutors to pressure clients into plea agreements which include lengthy suspension or harsher fines in exchange for no jail time. If you are facing careless driving charges, the consequences may be more severe than you think. For more information about careless driving, reckless driving, driving while suspended, DUI, DWI or other motor vehicle charges in New Jersey, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Overturned Due To Inappropriate Court Procedure

The facts in this driving under the influence (DUI) matter are that the defendant was stopped for speeding and admitted to the officer he had been drinking. After administering field sobriety tests the officer attempted to handcuff the defendant. Both the officer's testimony and the patrol car video show that the defendant resisted arrest and was wrestled to the ground by multiple officers then pepper sprayed. The defendant was ultimately charged with DUI and also resisting arrest, aggravated assault on a police officer and spitting on a police officer. In NJ Superior Court, the defendant pleaded guilty to the assault charges. Defendant next had to answer to the DUI charges in municipal court and moved to suppress evidence based on his claim the police lacked probable cause to stop him. The Judge, in State v. Gibson, found probable cause for the stop and then relied on the officer's testimony and video from the patrol car to determine the defendant had difficulty with the field sobriety tests in finding probable cause for the arrest. Due to chain of custody issues with the defendant's blood sample, the prosecutor would rely on the video and the officer's testimony at trial and defendant moved to dismiss claiming the State could not prove its case without the blood sample. The Judge heard the defendant and the state as to whether the evidence in the suppression hearing met the state's burden of proof then found the defendant guilty of the DUI. On appeal, the Superior Court Judge found the use of pre-trial evidence to convict was inappropriate but not prejudicial and upheld the conviction. The Appellate Division reversed the decision and ordered a not guilty finding reasoning that a suppression hearing pertains to admissibility of evidence but is not a trial of the matter at which all evidence is presented or at which testimony is offered and cross-examined. Due to the deprivation of due process rights, the defendant prevailed. A conviction for driving while intoxicated or driving under the influence in NJ has serious and lasting effects including the obvious loss of license as well as ramifications in later civil or criminal suits for wrongful death, damages and the like. A DUI, even if a first, can result in lengthy suspensions, fines and even jeopardize your ability to obtain certain professional licenses or other jobs. If you are charged with DUI in NJ, you should contact an experienced driving under the influence defense attorney to protect your rights. For more information about DWI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in New Jersey visit www.HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

NJ Legislature Proposes Residential Restrictions on Sex Offenders

A newly proposed bill that is currently being sent to the New Jersey State Senate could have a possible impact on sex offenders throughout the state. The bill, named S-570 would give power to municipalities to enact restrictions on where registered sex offenders would be able to reside, excluding them from areas such as kindergartens or parks. At present, municipalities throughout the state of New Jersey are not permitted to enact restrictions on the proximity of sex offenders to certain areas due to the lack of uniformity it may cause from town to town. If the bill being proposed by the Senate Law and Public Safety Committee, uniformity will be taking a back seat to safety. Discussion of restricting the residency and location of sex offenders throughout the state has been taking place since the inception of Megan’s law in 1994. Megan’s law, also known as the Sex Offender Act of 1994 on the national level, was created to require the registration of sex offenders as well as notification of all residents when a sex offender moves into their neighborhood. These laws on both our state and national levels have created a sense of security for many citizens who now feel as though they have more information needed to help keep their children safe from potential danger. Bill S-570 would create the addition to Megan’s law that many residents have been calling for from its inception. If approved, the bill would provide that registered sex offenders be at least five hundred feet away from prescribed locations set by each municipality such as schools, parks and kindergartens. It would be up to each municipality to set boundaries within their town, however the municipality would have to follow the model set out by the state. The bill is currently being sent to the New Jersey State Senate for a vote. A conviction or a plea for sex crimes in NJ will have a serious impact on your life ranging from restrictions on residence, lack of acceptance in society, lack of employment opportunities, incarceration and even permanent confinement to a treatment facility. If you are charged with sexual assault, possession of child pornography, molestation, endangering the welfare of a minor, solicitation of a minor, rape, statutory rape or other sex crimes you should seek an experienced defense attorney immediately to protect your rights. For more information regarding sex crimes or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is not intended to replace the advice of an attorney.

NJ Makes Plans To Curtail Prescription Drug Abuse

New Jersey is planning to slow down prescription drug abuse after a rapid rise in such abuse over the past few years. People, especially teens, have been abusing drugs including Adderall, Ritalin, codeine, methadone, fentanyl, oxycodone, vicodin, Valium, Xanax, Ambien, Lunesta at an ever increasing rate. Although these drugs are beneficial for certain conditions and there is a legitimate need for them, they are addictive and often lead to other drug use, including heroin. With fear for public safety and especially younger generations which seem to have a high percentage of addiction among users, New Jersey is considering methods, including legislation, to monitor the sale of prescription medicine. The ease of obtaining controlled dangerous substances (CDS) from corrupt doctors, phony wellness clinics and organized crime are considered the primary reasons for the rise in use of both heroin and prescription medication in the past few years. The New Jersey State Commission of Investigation has put forward recommendations in order to try and curtail distribution for inappropriate purposes throughout the state. They believe actions such as regulation of prepaid cellular phones, strengthening the state’s prescription drug monitoring system and the formation of a state strike force for drug investigations would greatly decrease the sale of these narcotics to minors. The Commission’s report includes data supporting the premise that the use by minors of prescription medication for recreational purposes often leads to trying heroin which is instantly addicting. Heroin addiction often leads to a substantial criminal history as individuals who cannot keep a job resort to shoplifting, theft, burglary and occasionally robbery in order to obtain funds to support their habit. Another frequent consequence of heroin is fatal overdose. Prescription drug charges in NJ will have a serious impact on your life including inability to obtain certain jobs and social stigma. If you are facing charges of possession or distribution in NJ you should seek an experienced attorney immediately to protect your rights. For more information on possession, distribution, possession of CDS in a motor vehicle or other serious drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way is it intended to replace to advice of legal counsel.

NJ Considering Removal of Crime History From Job Forms

New Jersey legislators are considering taking out criminal history in job applications throughout the state, which could help many who have convictions for assault, distribution, possession, burglary, shoplifting or other criminal charges. Just last month state legislators proposed a bill that would limit New Jersey employers from asking applicants about their criminal past. Many residents believe that this bill could possibly give an opportunity to previous offenders who do not have many employment options. Meanwhile other residents and employers believe that this bill if approved and implemented could possibly have dangerous criminals capable of doing possible harm to others slip through the cracks. Currently the majority of New Jersey employers inquire about an applicant’s criminal past to try and ensure security within their work place as well as with potential customers. The proposed bill would not override existing laws that require mandatory background checks for certain jobs, such as daycare centers, psychiatric hospitals and law enforcement. There have been several studies done that show that many employers throw away or refuse to give those with a criminal history any consideration for open positions. For some state residents convictions or pleas in their past such as charges for drugs, theft or even underage drinking have affected their ability to obtain consistent employment for actions that happened as long as decades ago. Advocates of the bill believe that many minor offenses that could have happened years ago create an unfair stigma among employers and prevent an equal opportunity among those who are applying. While the bill has not been approved, if implemented it could give thousands a possible first step towards steady employment beginning with a job interview that they would have not been able to get before. Assault and drug charges in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury. If you are charged with drug possession or assault in NJ you should seek an experienced attorney immediately to protect your rights. For more information on assault, theft, burglary, shoplifting, possession, distribution, weapons offenses or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is not intended to replace the advice of an attorney in regard to criminal issues.

NJ Overdose Immunity Law

The state of New Jersey has been working in the past months to try and boost the awareness of the Overdose Prevention Act, which could result in less drug charges for users in an effort save many. This past May, the state passed and signed into law the Overdose Prevention Act, which is designed to give immunity to both those who could potentially be overdosing and those who are looking to alert health professionals in order to save their friends. In the past other drug users did not want to involve themselves in the act of calling 911 in order to seek help. For decades those who were at the scene of the drug overdose would be taken into custody for charges of drug use or possession, which kept many from potentially acting to save others lives due to the fear of imprisonment. As a result of consequences to those who report, many users of heroin, cocaine and other controlled dangerous substances (CDS) there have been an unreasonable number of deaths from drug overdoses. Because death is a frequent and tragic consequence of CDS use, this legislation has been enacted to encourage others to seek help when someone’s life could be in jeopardy. The Overdose Protection Act is written to protect both the user potentially overdosing and any others that are alerting the authorities from drug use or possession charges. Just weeks ago New Jersey’s Attorney’s General Office sent out a directive to all law enforcement agencies to remind them to implement the law properly in order for it achieve the results the state wishes. With the new act implemented the state is hoping for a sharp decrease in deaths due to drug overdoses. Possession, distribution or other drug charges in NJ have serious consequences. If you are facing any of these charges you should seek experienced legal counsel immediately to protect your rights. For more information on possession, distribution, prescription drug charges, CDS in a motor vehicle or other drug charges in New Jersey visit HeatherDarlingLawyer.com this blog is for informational purposes only and not intended to replace the advice of legal counsel.

Sleeping it Off In Your Car Can Lead to DUI and Drug Charges

Happy 4th of July! Here's a tip for those celebrating with alcohol: If the police find you sleeping it off in your car, you will be charged with DUI! Many people believe that in order to be charged with Driving Under the Influence, you must be in the driver's seat with the car in motion on a public road. This is far from true! The police can charge you with Driving While Intoxicated based on presumptive operation, either you were going to drive the car while intoxicated or you drove the car to the place they found you then decided to stop and sleep it off. Presumptive operation can be based on a vehicle being parked across multiple spaces as if the driver was impaired, being the only one in the vehicle with no other possible driver, approaching your car with keys on your person, starting the car to stay warm in the winter and a host of other surprising reasons. As an example, on July 3rd, 2013 a fifty-three year old Bayonne resident was found sleeping behind the wheel of his automobile in a Quick Check paring lot. When asked by the police officer to step out of the car the man dropped a small package of an unknown substance, which was later found to be heroin. The man was charged with both possession of a Controlled Dangerous Substance (CDS) in a Motor Vehicle, as well as DUI. Under New Jersey law the definition of operating a vehicle is extremely broad to include more than simply driving that automobile, as many residents think. Dating back almost fifty years the courts have made monumental decisions in the matters of sleeping intoxicated drivers behind the wheel of a car, such as State v. Baumgartner, 21 N.J. Super. 348 (App. Div. 1952). That case made it clear that when an operator of a vehicle is found sleeping behind the wheel there are a number of situations that can result in a DUI charge of the driver. As in Baumgatrner, this Bayonne man was charged with a DUI due to the fact that he was found in a parking lot, one in which he stated was not in earlier. The man had a blood alcohol content (BAC) over the legal limit and it was then deduced, not observed, that the man had driven to that location under the influence of alcohol. DUI/DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on driving under the influence, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. Be safe this 4th of July and if you drink, don't drive! DUI, DWI, Driving while intoxicated, driving under the influence, drug charges, CDS, CDS in a motor vehicle, Controlled dangerous substance, alcotest, BAC, blood alcohol content

Rise In Underage Drinking and DUI With Graduation and Summer Celebrations

With graduations occurring throughout the state of New Jersey in the past weeks police have noted a rise in arrests related to underage drinking. Graduation for many students is a time of celebration and in many cases partying with fellow classmates. Under New Jersey law, the legal age for consumption and ability to purchase alcohol is twenty-one years of age. The current drinking age has been in effect from the National Minimum Drinking Age Act of 1984. For both police and parents their main concern is the safety of the children involved, both in the purchase and consumption of the alcohol. Recently on June 1, 2013, Lacey Township police officers responded to what appeared to be an underage party at the home of Debra Fenton. On the property the police discovered a number of underage adolescents and young adults drinking and issued Fenton a criminal summons for making property available to underage persons for the consumption of alcohol. Not only is underage drinking illegal but it is dangerous and often leads to hospitalization from alcohol poisoning and motor vehicle accidents resulting in serious injury or death of the intoxicated children and occupants of other vehicles. In recent years many police departments have been trying to penalize those who provide the alcohol to underage persons as well as providing property for underage drinking to take place. Both charges carry up to six months in jail and or up to one thousand dollars in fines. With the end of the school year and graduation being a time where many underage persons look to engage in drinking, police look to try and crackdown on incidents such as this in order to serve a message to the public. A conviction for underage drinking or underage driving while intoxicated on a juvenile’s record can have devastating consequences on their future including loss of preferred education and occupation opportunities. Many think only of loss of driver’s license, fines and other short term issues but those issues are insignificant compared to the long term effects. If you are facing underage drinking charges, you should consult with an experienced defense attorney immediately to protect your rights. For more information on protecting your rights if charged with underage drinking, DUI, drug charges or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Supreme Court Ruling Expands DNA Use In Criminal Cases

DNA obtained by police during arrest for assault charges is not illegal search and seizure and may be used to convict defendant of rape charges. The defendant, in Maryland v. King, was arrested for first and second degree assault charges in 2009 and as a standard part of their booking process, police in Maryland took a DNA sample by way of buccal swab from defendant's cheek. The DNA matched an unsolved rape from 2003 and defendant was charged with the rape. Defendant sought to have the DNA match suppressed as a violation of his fourth Amendment rights against unreasonable search and seizure. Suppression was denied on the basis that a buccal swab from the cheek is an non-intrusive part of the identification process undertaken during booking and is akin to photographing and fingerprinting. Law enforcement has a massive database of DNA evidence. There is likely to be widespread expansion of this practice following the court's decision in King. Justice Antonin Scalia provided a lengthy dissent to the opinion which includes the warning that the decision of the Supreme Court in King will lead to the taking of DNA and entry thereof "into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. Many states already use methods of DNA collection which go well beyond those in King, including: (1) requesting DNA from uncharged suspects or witnesses to 'allow them to prove their innocence'; (2) implicating those who have DNA matches similar to DNA found at a crime scene in order to see if they will provide information about a family member's actual participation; (3) obtaining DNA samples from going through a person's trash; and (4) filing felony charges to get defendants to trade DNA for a 'lesser sentence' as part of a negotiated plea. In the event you are arrested, it is critical that your rights are upheld throughout the police investigation and procedures. If you have been charged with robbery, burglary, gun or other weapons charges, drug distribution or possession, rape of other sex crimes, conspiracy or any other criminal offense in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession, distribution or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Prior Convictions Inadmissible After 10 Years?

In State v. Harris,, 209 N.J. 431 (2012) the defendant was charged with robbery and burglary and the Superior Court Judge permitted the prosecutor to use defendant's 13 year old drug convictions to impeach defendant's testimony. The NJ Supreme Court found no abuse of discretion on the part of the trial court judge. Most of the defendant's convictions from 1994 through 2007 were disorderly persons offenses but were still permitted to close the gap of remoteness. As a result, a NJ Supreme Court subcommittee is recommending the adoption of revisions to N.J. Rule of Evidence 609 to prevent the prosecution from introducing evidence of convictions more than 10 years old. In actual practice, a remoteness analysis could be undertaken including the following considerations: (1) whether there are other convictions between the accused crime and any prior crimes the prosecution wishes to admit and the nature and seriousness thereof; (2) whether any of the prior convictions involves fraud or dishonesty and (3) the seriousness of the offense. The final result would be to bar the introduction of evidence regarding prior convictions over 10 years old unless the probative value outweighs the prejudicial effect of the evidence after judicial analysis. If you have been charged with theft, burglary or any other criminal offense in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with theft, burglary, shoplifting or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Futuristic Prevention Policy For Sex Offenders

Sex offenders must be sentenced according to statute, just as those found guilty of other crimes. Under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to .38, certain offenders are confined to secure facilities at which they will serve their time, as would anyone convicted of another type of crime. The difference is that these individuals, determined to be sexually violent predators (SVP), will remain in custody upon completion of their sentences. Most people are aware of Megan's Law and the Sex Offender Registry but many are not fully aware of all possible ramifications of conviction, or a guilty plea, for sex offenses. Those considered SVPs under the law and confined for the remainder of their lives have been convicted of violent rape in some cases and downloading child pornography but having no physical contact in other cases. The premise of this lifetime confinement, not simply supervision as most know is a routine result in sex offenses, is that the government is protecting the greater good of society by confining them until they no longer pose a threat. Interestingly, in no other area of the criminal justice system are individuals imprisoned for crimes they might commit in the future. Sex offenses, no matter the crime charged or pled to, bear penalties which will affect you for the rest of your life, even if you reach a plea agreement that may seem favorable at first glance. If you have been charged with a sex crime you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.