Tuesday, May 19, 2015

A1368 May Overhaul DUI Punishment In NJ

A1368 is a NJ bill, proposed by the Assembly, which could revise the NJ drunk driving statute, N.J.S.A 39:4-50. The bill was approved by the Assembly and Senate and currently under revision pursuant to comments by Governor Chris Christie. If accepted the new statute would permit those convicted of driving under the influence (DUI) to avoid long-term loss of driving privileges by having an ignition interlock device installed in their vehicles. First-offenders with a blood alcohol level (BAC) between .08 and .10% will be required to have an ignition interlock device installed for 3 months and those with .10 to .15% BAC readings would require 7 to 12 months with an ignition device. First-offenders with a .15% BAC or higher would lose their driving privileges for 7 to 12 months but, after 90 days, could make application to the court for an ignition interlock device. In any case, if the court determined there were too many aggravating factors including “circumstances of the offender’s conduct”, prior driving record, how long the offender has been licensed, or indicators of a substantial risk of re-offending, the current method of license suspension for a specified period between 3 and 12 months rather than ignition interlock device installation would be applicable. In the case of a first-offender with a BAC of .10 to .15%, if they do not own, lease or principally operate a vehicle and no ignition interlock may be installed, their driving privileges will simply be forfeited for 7 to 12 months. First-offenders with BAC levels of .15% or greater who do not own, lease or principally operate a vehicle will lose their driving privileges for 7 to 12 months for DUI and a consecutive 7 to 12 months making their suspension period as long as they would have been required to maintain an ignition interlock device on their vehicle. For a second driving while intoxicated (DWI) charge, the suspension would be for a period of 2 to 4 years rather than the current 2 year period. Additionally, an interlock device would be required on the person’s vehicle for the entire suspension period as well as thereafter. For a third or subsequent DUI, suspension would increase from the current 10 year period to a period of 10 to 20 years. Those convicted of refusal to provide a breath sample (N.J.S.A. 39:4-50.2) in the case of second and subsequent events will also face these same suspension periods and interlock device requirements. This bill forgives first-offenders and provides them with opportunity to maintain their livelihood while preventing them from harming others through future instances of driving while intoxicated. Additionally, it is designed to send a strong message to drivers that re-offenders will be punished severely by long-term suspensions, additional expense of an ignition interlock device for an extended term, substantial fines and jail time. If passed, this bill will substantially alter the futures of those convicted of DUI. If you are charged with DUI, you need experienced defense counsel to protect your rights. For more information about DWI, refusal to submit to breath tests, driving while suspended for DUI, driving under the influence of drugs (DUID), controlled dangerous substance (CDS) and other serious driving charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Monday, May 11, 2015

Handgun Discovered In Search Will Not Be Suppressed

James J. Scarborough pled guilty to second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)) after police found a handgun under his seat in a vehicle during an investigatory search based on the odor of burnt marijuana coming from the vehicle's interior. He was sentenced to 5 years incarceration, subject to a 3 year period of parole ineligibility under the Graves Act (N.J.S.A. 2C:43-6c). Police received an anonymous call about a vehicle parked in the rear lot of a closed facility and, upon responding, discovered 2 males in the vehicle involved in what the officer suspected to be drug activity. Upon encountering the driver the officer perceived an odor of burnt marijuana. Ultimately, the driver signed a consent to search form and a handgun was discovered under the passenger seat where Scarborough was sitting along with a magazine and ammunition between the passenger seat and door. Scarborough told police he found the gun in the woods earlier in the day and did not know what to do with it. Scarborough filed a motion to suppress the evidence and his statement, both of which were denied and he then entered into the guilty plea. In State v. Scarborough the defendant appealed and the NJ Appellate Division upheld the denial of the suppression motion finding that a field inquiry under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) was permissible based on the anonymous call regarding the vehicle. The odor of burnt marijuana then gave probable cause to believe a crime was committed under State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995) and State v. Nishina, 175 N.J. 502 (2003). Once the officer had probable cause to believe criminal activity was afoot he was justified, under State v. Carty, 170 N.J. 632 (2002), in seeking consent to search the vehicle. Finally the NJ Appellate Division found no abuse of discretion by the trial judge in determining the Scarborough's statement was not coerced. The matter was, however, remanded as to sentencing factors only. Second-degree unlawful possession of a handgun in NJ carries up to 10 years in prison with a mandatory period of parole ineligibility under the Graves Act. If you are charged with a weapons offense you need experienced criminal defense counsel. For more information about weapons possession, possession of a weapon without a permit, use or possession of a weapon in the commission of a crime, illegal weapons or other weapon related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.