Lawyer Challenges His DUI Plea Based On Lack Of Counsel

Henry Aratow was convicted of driving while intoxicated (DWI)(N.J.S.A. 39:4-50) in 1988, pled guilty to a driving under the influence (DUI) in 2004, and pled guilty to a 2009 in 2011. In the case of the 2009 DUI, Aratow was sentenced as a third offender resulting in a 10 year loss of driving privileges and 180 days incarceration. In 2013, Aratow sought post conviction relief from in the municipal court and then Superior Court of New Jersey, Law Division, Morris County with regard to the 2004 DUI in order to avail himself of the step-down provisions under State v. Revie, 220 N.J. 126 (2014), pertaining to successive DUI convictions. The relief sought was denied and Aratow appealed to the NJ Appellate Division. In 2004, Aratow was stopped by police and charged with DWI, refusal to submit to a breath sample (N.J.S.A. 39:4-50.2), and making an improper turn (N.J.S.A. 39:4-116). Both at the time he was stopped by police and when he appeared in court for the resulting charges, Aratow was a practicing attorney. Aratow waived his right to counsel and entered into a plea to operating a motor vehicle with a blood alcohol content (BAC) between .08 and .10 with a dismissal of the refusal to submit to chemical breath testing and the improper turn charges. At the time of the 2004 plea, the municipal court judge engaged in lengthy colloquy with the defendant regarding his right to counsel, the factual basis of his plea. The NJ Appellate Division determined that the Aratow was not advised by the municipal court judge of the progressively harsher consequences of successive DUI convictions and, therefore, did not knowingly, voluntarily, and intelligently enter into the plea as required under N.J. Court Rule 7:6-2(a)(1). The court also questioned the sufficiency of the factual basis given by the defendant, as set forth in State v. Campfield, 213 N.J. 218 (2013). The court found that, although Aratow admitted to operating a motor vehicle after consuming 3 vodka and tonics, he was not questioned as to whether he believed that the alcohol he consumed substantially impaired his ability to operate the vehicle or that his BAC was between .08 and .10. Under State v. Barboza, 115 N.J. 415 (1989), the remedy for a plea entered with an insufficient factual basis is to reinstate all charges and restore the matter to its original status prior to the entry of the plea. Accordingly, the NJ Appellate Division reversed and remanded the 2004 matter for a new trial. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

S385/A1368 And DUI In NJ

Driving under the influence of alcohol or drugs (N.J.S.A. 39:4-50) can have devastating consequences to both victims and drivers alike. New Jersey legislation, S385/A1368, has been proposed as a means of preventing would-be repeat offenders from getting behind the wheel while allowing individuals who made an innocent but costly mistake a chance to continue to drive by installing an Ignition Interlock Device on their primary vehicle or vehicles. The proposed legislation includes only 10 day license suspensions upon conviction for the purpose of installing the device on the vehicle. Once installed, the driver must blow into the device, which detects alcohol on the breath, in order to start the vehicle. If the ignition interlock device detects that the driver's blood alcohol content (BAC) is elevated over .05%, the ignition will be disabled. Additionally, once the vehicle is in operation, the ignition interlock device requires the driver to blow into the mouthpiece at certain intervals to better insure the individual driving the vehicle remains sober and the individual who initially blew into the device is in fact the driver. NJ S385/A1368 would permit first-offenders with a BAC of between .08 and .10% to avoid long-term license suspension by installing in ignition interlock device for 3 to 6 months, unless aggravating circumstances exist which indicate a long-term license suspension is appropriate. First-time offenders with a BAC of .10% or greater would be required to install the device for 7 to 12 months. Additionally, there are additional penalties for those who circumvent the ignition interlock device or drive a vehicle without an interlock device during their required installation period. Those who in any way facilitate another in circumventing an ignition interlock device, by blowing into the device, disabling it or providing another vehicle to the suspended driver also face criminal charges which can result in up to 6 months in jail. Second-offenders would be required to install the device for a period of 2 to 4 years. Persistent offenders would continue to face long-term suspension and jail terms. The ignition interlock device bears an installation cost as well as a monthly service fee and drivers still face increased insurance costs and other motor vehicle fees in the event of a DUI conviction. If you are facing DUI charges, the consequences can include large fines, loss of a job due to inability to commute or loss of certain professional licenses as a result of the DUI, jail and the social stigma associated with DUI. If you have been charged with driving under the influence of drugs or alcohol, you need experienced defense counsel in your corner. For more information about DUI, DUID, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other motor vehicle charges visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Blood Draw Due To Exigent Circumstances

Donna Jones was suspected of driving under the influence (DUI) at the time she caused a three car accident, resulting in injury to herself and another, by rear ending a car stopped at a light then striking a second car immediately in front of the first before her vehicle came to rest. As a result of the accident, Jones was unconscious. Although officers were alerted by EMTs to an odor of an alcoholic beverage emanating from Jones' breath at the scene, no field sobriety testing was possible due to her condition. Jones was transported to the hospital for treatment after emergency personnel extracted her from her vehicle. At the hospital Jones remained unconscious for some time and was despondent upon regaining consciousness. An officer requested that blood be extracted from Jones without a warrant and the resultant blood alcohol content (BAC) reading was .345 percent. Jones was indicted for fourth-degree assault by auto (N.J.S.A. 2C:12-1(c)(2)) and issued summonsed for DUI (N.J.S.A. 39:4-50) and reckless driving (N.J.S.A. 39:4-96). In Missouri v. McNeely, ___ U.S.___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), a driver was arrested for driving while intoxicated (DWI) as a result of a routine traffic stop and U.S. Supreme Court determined that the natural metabolization of alcohol in an individual's bloodstream does not, without more, constitute exigent circumstances giving rise to the ability of police to forego the warrant requirement of the Fourth Amendment and withdraw a blood sample without consent. Pursuant to the holding in McNeely and the fact that there was no proof police were unable to obtain a warrant under the particular facts of the case, the trial court suppressed Jones' blood alcohol content (BAC) reading. On appeal, in State v. Jones, the State argued that McNeely should not have been applied retroactively in this case where the incident occurred but the case was decided after McNeely. The NJ Appellate division determined the trial judge erred in his application of the standard required under McNeely and Schmerber v. California, 384 U.S. 757 (1966), and held that the BAC results of Jones should not have been suppressed. In State v. Dyal, 97 N.J. 229, 238 (1984), New Jersey courts held it legal to obtain a blood sample without the need for a warrant as long as there was a reasonable belief the driver was intoxicated and the blood was withdrawn "in a medically acceptable manner…without the use of excessive force." The NJ Appellate Division did consider McNeely in determining that it is a given that a person's BAC does dissipate once the alcohol is fully absorbed into the blood stream and declines over time until it is fully metabolized thus creating a need for drawing blood to preserve evidence of intoxication. The decision of the trial court with regard to suppression of the BAC results was reversed. If you are convicted of DUI you face serious penalties including loss of license for up to 10 years, incarceration for up to 180 days and substantial fines. You should obtain an experienced DUI attorney immediately to help fight your case. For more information about DWI, drug DUI, CDS in a motor vehicle, blood and urine testing, reckless driving, refusal to submit to a breath test or other serious motor vehicle offenses in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alternatives To Jail For Driving While Suspended For Multiple DUI Charges?

Driving while suspended for a second or subsequent driving under the influence (DUI) (N.J.S.A. 39:4-50) charge in New Jersey now carries a 180 day mandatory minimum jail term. Since N.J.S.A. 2C:40-26(b) was enacted on August 1, 2011, drivers sentenced to the mandatory minimum 180 days in jail without parole have been seeking alternative sentences. Under N.J.S.A. 2C:40-26(b), it is a fourth-degree crime to operate a motor vehicle during a period of license suspension for a second or subsequent driving while intoxicated (DWI) conviction or refusal to submit to chemical breath testing in violation of N.J.S.A. 39:4-50.2. In State v. French, 437 N.J. Super 333 (App. Div. 2014) , the trial court sentenced French to 180 days in jail, but allowed for up to 90 days of the sentence to be served in an inpatient treatment facility. The NJ Appellate Division held that sentences other that incarceration were not what the Legislature contemplated in enacting the statute and refused to find opportunity for flexibility in sentencing. In State v. Harris, John D. Harris, III, was sentenced to 180 days but allowed to serve his sentence on the Home Electronic Detention System (HEDS) program. The State appealed the sentence and the NJ Appellate Division upheld the courts finding in French finding that the Legislative intent of N.J.S.A. 2C:40-26(b) was to protect the public from those who would continue to drive after multiple DUI convictions. Although there is likely to be further litigation regarding other alternatives to incarceration, including diversionary programs, for driving while suspended for DWI the present state of the law is that you will serve 180 days in jail for this offense. If you are facing charges of DUI, DWI or driving while suspended for these charges you are facing significant periods of license suspension and the possibility of jail. It is critical that you obtain experienced criminal defense counsel to protect your rights. For more information about DUI, DWI, driving while under the influence of drugs (DUID), driving while suspended for DUI, controlled dangerous substances (CDS) in a motor vehicle or other serious traffic related 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 Step-Down Is Not Limited To One Use Per Driver

The NJ driving under the influence (DUI) statute (N.J.S.A. 39:4-50) includes a provision wherein a “step-down” in sentencing occurs after any ten (10) year period in which an individual charged with a prior DUI receives a lesser level penalty for a subsequent DUI. For example, pursuant to N.J.S.A. 39:4-50(a)(2), if an individual was convicted of their first DUI in 1986 and a second DUI in 1994, they would be sentenced, among other penalties, to a two year loss of driving privileges as a second offender in 1994. However, pursuant to N.J.S.A. 39:4-50(a)(3), if an individual was convicted of their first DUI in 1986 and a second DUI in 1997, more than ten (10) years later, they would be sentenced to, among other penalties, a seven to twelve month loss of driving privileges as a first-offender in 1997. In State v. Revie, the defendant, James Revie was convicted of a fourth driving while intoxicated (DWI) charge in 2011 in Wharton, NJ after an initial DWI in 1981 in Hillsdale, NJ, a second and uncounseled DWI in 1982 in Bogota, NJ, and a third DWI over ten (10) years later in 1994 in Montvale, NJ. Due to the fact that the second DWI was uncounseled and the defendant should have received the benefit of the step-down provision for the ten (10) year lapse between the second and third DWI convictions, the defendant argued that, for the 2011 DUI, he should be sentenced as a second-offender with regard to any term of incarceration. However, the Municipal Court Judge sentenced him as a third-offender refusing to read N.J.S.A. 39:4-50(a)(3) as providing more than one “step-down” benefit to any driver. The NJ Superior Court, Law Division, Morris County affirmed as did the NJ Appellate Division. The NJ Supreme court held that there is no indication that the Legislature intended for a defendant meeting the requirements of the “step-down” provision on more than one occasion to be entitled to the benefits thereof on only one such occasion. In addition to the Legislative intent, included in the NJ Supreme Court’s consideration were also State v. Laurick, 120 N.J. 1, 498 U.S. 967, 111S.Ct. 429, 112 L. Ed. 2d 413, (1990) and State v. Hrycak, 184 N.J. 351 (2005) as they pertained to Revies’ second and uncounseled DUI and State v. Conroy, 397 N.J. Super. 324 (App.Div. 2007) as it pertained to a defendant sentenced with the benefit of Laurick and the “step-down” provision of N.J.S.A. 39:4-50(a)(3). The matter was remanded to the Law Division for re-sentencing as a second-offender. DUI charges, whether for alcohol or drugs, are very serious charges which can lead to incarceration and loss of driving privileges up to ten years. If you are facing charges for DUI it is critical that you obtain experienced defense counsel immediately. For more information about DUI, DUID, controlled dangerous substances (CDS) in a motor vehicle, refusal to submit to chemical breath tests, reckless driving 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.

Dash Camera Video Available In Traffic Cases?

In October 2014, New Jersey Superior Court Judge Vincent Grasso issued two rulings regarding police dash cam video records that have stirred quite a bit of interest from attorneys who handle traffic cases in New Jersey. As an attorney, I routinely hear a story from my clients which differs greatly from the contents of the police report I receive in response to my discovery request. Although the officer prepares a routine report at the end or shortly after their shift, they handle many similar matters day in and day out. This results in an awareness of what highlights to give attention to when writing a report as well as a blurring of their memory as to specific incidents as a result of substantial similarity in driving under the influence (DUI) stops, reckless driving stops and other motor vehicle stops. On the other hand, a driver facing DUI, reckless driving, careless driving or other motor vehicle charges is likely to be stopped on an infrequent basis and have absolutely no confusion about the conditions and events surrounding the motor vehicle stop. On the other hand, the driver is most often unfamiliar with the statute under which they are being stopped and the portions of the event they recall specifically may not relate to the statutory factors which will determine their guilt or innocence. For example, drivers often focus on conditions external to the stop which, in their opinion, gave rise to the circumstances resulting in the stop such as the need to move a vehicle after consuming alcohol. In either version of the event, the officers or the defendant's, there is the possibility for error. If Judge Grasso's ruling with regard to the cases, including Ganzweig v. Township of Lakewood, result in the routine provision of video footage to the public, the diverging stories will become of less import as there will be an accurate and unbiased video recording of the event for the defendant, the officer, the prosecutor, defense counsel and the judge to view. As it stands, obtaining video of traffic stops, when available at all, can be challenging resulting in substantial delays of the matter and frustration to clients paying attorneys for continued court appearances for no purpose other than discovery motions with regard to the video sought in any particular matter. If you are facing charges for a traffic violation including DUI, driving under the influence of drugs (DUID), reckless driving, driving while suspended, controlled dangerous substances (CDS) in a motor vehicle or other traffic matters you can face incarceration, loss of license, substantial fines and surcharges and increased insurance rates. You should seek an experienced municipal court attorney to protect your rights. For more information about traffic court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Second DUI Offense Requires Mandatory Confinement

Roger Dent struck two vehicles stopped at a red light and was charged with driving under the influence (DUI)(N.J.S.A. 39:4-50), careless driving (N.J.S.A. 39:4-97), possession of an open container of alcohol (N.J.S.A. 39:4-51(b)) and failure to wear a seatbelt (N.J.S.A. 39:3-76.2(f)). The defendant was convicted of DUI in municipal court and sentenced to 180 days in prison as a third offender, as well as 10 year loss of driving privileges and substantial fines. Dent had three prior convictions for driving while intoxicated (DWI). Due to one of the prior DUIs being without counsel, that particular DUI could not be used to enhance any future custodial sentences for DUI pursuant to State v. Laurick, 120 N.J. 1 (1990). Following appeal of the municipal court decision, in the Superior Court of New Jersey, Camden County. Dent was sentenced to 60 days in prison as a second-time DUI offender which, pursuant to the judge, he could serve in the County Supplemental Labor Service (CSLSP), frequently referred to as SLAP. In State v. Dent, the State appealed the sentence as contrary to N.J.S.A. 39:4-50(a)(2) and (3) which specifies a minimum 48 hour period of incarceration which is also not to exceed 90 days and that said sentence “shall not be suspended or served on probation…” but the statute does allow for “county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center…” The NJ Appellate Division held that, pursuant to State v. Johnson, 42 N.J. 146, 174 (1964), “imprisonment was intended to be mandatory” for second-time or subsequent DWI offenders and remanded the matter to the Superior Court for resentencing. Dent’s argument that his 48 hours in an Intoxicated Driver’s Resource Center satisfied the 48 hour incarceration period may be considered by the Law Division as credit against any sentence he may be given thereby. If you are convicted of DUI you face serious penalties including loss of license for up to 10 years, incarceration for up to 180 days and substantial fines. You should obtain an experienced DUI attorney immediately to help fight your case. For more information about DWI, drug DUI (DUID), controlled dangerous substance (CDS) in a motor vehicle, reckless driving, refusal to submit to a breath test or other serious motor vehicle offenses in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.