DUI + Refusal = Jail

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

DUI Repeat Offenders Will Be Punished Accordingly

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

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

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