DUI Susupensions Do Not Call For Lenity

In State v. Rodriguez, five Defendants filed consolidated appeals after convictions of fourth degree operating a motor vehicle during suspensions for driving while intoxicated, N.J.S.A. 2C:40-26. The Defendants had all pled guilty to driving while suspended for driving under the influence, N.J.S.A. 39:4-50, were seeking to serve their sentences at night or on weekends and the judge agreed, giving two of them night sentences and the other three received weekend only sentences. The Appellate Division ruled that the sentences meted out were within the court’s discretion but that the 180 day noncontiguous sentence had to be served in blocks of 24 hours each to qualify for a “day served”. The Appellate Division’s decision included the fact that N.J.S.A. 2C:40-26(c) does not specify that the 180 days need be served consecutively, that there is no reduction in the total term of confinement and there was an effort to allow some lenity as long as there was no reduction in the deterrent effect of the sentence. The Supreme Court of New Jersey granted the State’s petition for higher appeal, 234 N.J. 314 (2018), as to whether sentences could be served intermittently and ultimately held that one sentenced to a statutory minimum term of 180 days for operating a motor vehicle while suspended for DUI must serve the entire term consecutively. N.J.S.A. 2C:40-26(c) calls for a “fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.” The Supreme Court reasoned that when the Legislature wishes to leave discretion to the sentencing court, they normally indicate so clearly in the language of the statute. Further, the court indicated that the clear reference to a minimum 180 day period of parole ineligibility is a bar to serving the term intermittently. If you have been charged with DUI or driving while suspended for DWI, contact The Darling Law Firm, LLC now at 973-584-6200 to speak to a seasoned attorney and insure your rights are protected. For more information on driving while intoxicated or driving while suspended, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Revised Expungement Laws On The Way

Expungement (N.J.S.A. 2C:52-2) is a procedure that currently allows someone with a limited criminal history to obtain a fresh start. Along with the push to legalize recreational marijuana, a new bill intended to make it possible for those with “low-level” marijuana offenses to obtain a fresh start as part of the criminal justice reform press is waiting for the Governor's signature. The bill expanded from marijuana offenses, for which it creates an expedited procedure, to allowing the expungement of third and fourth degree controlled dangerous substances (CDS) offenses, which were previously not eligible for expungement. Additionally, the bill has a “cleanser” which permits formerly incarcerated persons to petition for expungement after 10 years without another offense. Currently, expungement is based on the notion that a person should not spend their lives paying for a mistake in judgment. The 10 year petition provision will allow those convicted of multiple crimes or a combination of one or more crimes and one or more disorderly persons of petty disorderly persons offenses to petition for expungement after 10 years from the date of the most recent conviction, satisfactory completion of probation or parole or release from incarceration, whichever is later. Additionally, although the completion of all terms and conditions of release will still apply, full payment of all fines will no longer be a pre-condition of petitioning for expungement as outstanding fines will be transferred to the Treasury for collection. Senate bill, S-3205, and Assembly Bill, A-4498 passed in June and it is anticipated the Governor will sign the Bill. If you are interested in obtaining and expungement and want to determine whether you are elligible, call 973-584-6200 or, for more information about expungement or other criminal law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Value of Evidence vs. Testimony in Prostitution Case

John R. Salyerds was arrested in 2016 in a hotel room and charged with engaging in prostitution as a patron in violation of N.J.S.A. 2C:34-1(b)(1) in State of New Jersey v. John R. Salyerds. Salyerds sought dismissal as police failed to preserve what he felt to be exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, the State conducted a sting operation by posting internet ads soliciting individuals to call a specific phone number to set up a meeting with a prostitute. The State indicated the ad offered a “$50 short stay special” with the phone number the Salyerds called but the State failed to produce the advertisement. Salyerds maintained the contents of the ad were actually exculpatory and necessary if the State intended to rely on the contents of the ad as evidence that he engaged in prostitution. The prosecution maintained that the ad was not critical as they intended to rely on a recording of the defendant while at the motel to prove their case. Evidence produced at trial demonstrated that the Defendant called a telephone number associated with numerous similar internet ads placed by police as part of a sting operation to solicit individuals to come to a certain destination to meet a detective posing as a prostitute and asked for the “$50 special” and arranged to meet with the detective at a motel room. An audio recording was played in which the Defendant indicated he was there for the “short stay special” and the detective told him to put the money on the table at which time other detectives entered the room and arrested the Defendant. The specific content of the ads was not provided in evidence and the municipal judge prohibited testimony in that regard. The Defendant maintained that he did nothing and no contact occurred. The detectives testified that the money was not on the table prior to the Defendant entering the room and further testified as to what the “short stay special” was. After hearing all testimony, the municipal judge found the Defendant guilty. On appeal, Defendant argued that the prosecutor lied about the existence of material evidence, specifically the advertisement, and that the officer who testified as to the meaning of the “Short stay special” was not a qualified expert witness. The Defendant specifically included that, pursuant to State v. Nash, 212 N.J. 518 (2013), the prosecution is obligated to turn over all exculpatory evidence to the Defendant and that failure to provide same is a violation of the Defendant’s due process rights. Pursuant to State v. Martini, 160 N.J. 248 (1999), if the Defendant shows that the prosecution suppresses material information favorable to the Defendant, the prosecution commits a Brady violation. George v. City of Newark, 384 N.J. Super 232 (App. Div. 2006) indicates that suppression, not the absence or existence of bad faith, violates due process. Pursuant to State v. Mustaro, 411 N.J. Super 91 (App. Div. 2009), if the evidence is no longer available for the Defendant to use in demonstrating its value, the Defendant must establish bad faith on the part of the prosecution in destroying the evidence. The Appellate Division found no proof of bad faith or any exculpatory value in the missing advertisement. However, after significant review regarding what constitutes expert opinion, the Appellate Division did hold that the court erred in admitting the detective’s testimony as to what the “short stay special” meant. On those grounds, the Appellate Division vacated the conviction and remanded for a trial de novo in the municipal court without consideration of the detective’s opinion of the meaning of the short stay special or any specialized knowledge the judge may have of similar operations by the local police department. If you have been charged with a crime, your future is on the line. Visit DarlingFirm.com for information or call 973-584-6200 to set up a consultation and begin protecting your rights. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

A4292 is Protection for Car Dealers at Your Expense

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