Judge Charged With DUI is Censured

Municipal Court Judge Wilfredo Benitez attempted to talk his way out of a driving under the influence arrest by wielding the power of his office. Now Benitez is barred from presiding over DUI matters until September 7, 2019, although he remains a municipal court judge in East Orange and Belleville. Benitez was arrested in November 2016 when found by New Jersey State Troopers asleep in the driver’s seat of his vehicle on Route 80 West in Teaneck. Upon investigation, Benitez was found to possess bloodshot and watery eyes and the odor of an alcoholic beverage on his breath. After field sobriety tests, the Judge was placed in handcuffs and became belligerent, telling officers that he is a Judge and they were wasting their time. The Advisory Council on Judicial Conduct (“ACJC”) filed a complaint due to Benitez representation that he was a Judge to win favor with the police. The ACJC found mitigating factors in that there was no prior history of such behavior in a lengthy career and aggravating factors in Benitez’ insulting language and efforts to degrade the Troopers. The result was the censure of Wilfreo Benitez and a temporary bar from presiding over DWI matters. DUI Charges in NJ will have a serious impact on your life no matter who you are and they can have significant implications in related matters. If you are charged with Driving Under the Influence in NJ, you should seek an experienced attorney immediately to protect your rights. For more information about DUI, reckless driving or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Prosecutorial Discretion vs. Decriminilization of Marijuana

N.J. Attorney General Gurbir Grewal issued a directive permitting prosecutorial discretion in “minor” pot cases, but cautions against ideas of decriminalization. According to the Attorney General, prosecutors who find evidence lacking or special circumstances which would make sentencing too harsh have discretion to dismiss cases involving use or possession of small quantities of marijuana. Grewal has been meeting with civil rights groups, prosecutors, members of law enforcement, attorneys and multiple community organizations, presumably to determine what the best middle ground is to satisfy the outspoken. At the same time, the Legislature continues to move toward legalization of marijuana for recreational use. Not knowing when the Legislature will take action, the Attorney General determined that pending matters could not be stayed indefinitely. Grewal’s directive will yield to the decision of the Legislature once action is taken. As it stands, he has battled against prosecutors ceasing marijuana prosecution no matter the circumstances. The Attorney General does not support vesting individual prosecutors with Legislative powers but he does support prosecutorial discretion. Factors cited by Gurbir Grewal as requiring consideration in the decision of whether to prosecute or dismiss marijuana charges include the Defendant’s criminal record, impact on future employment and professional licensing, age, impact on immigration status, whether future educational opportunities would be impacted and adverse consequences with regard to the defendant’s family or public benefits including housing. The criteria set forth would permit discretion in nearly every matter. Following Grewal’s directive, the American Civil Liberties Union issued a statement calling for legalization based on the apparent limitations of the directive and likelihood for disparity. Drug Charges in NJ will have a serious impact on your life and can have significant implications in related matters. If you are charged with a drug crime in NJ you should seek an experienced attorney immediately to protect your rights. For more information on CDS in a motor vehicle, reckless driving or possession matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

One and One Make Two in DUI

James Dougherty was charged with violating N.J.S.A. 2C:40-26(b) for driving while suspended for a second or subsequent conviction or plea to driving while intoxicated (N.J.S.A. 39:4-50) or refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a)). Dougherty, seeking to avoid mandatory jail time, took the position that 2C:40-26(b) required conviction for two charges of refusing to submit to chemical breath testing or convictions for two charges of driving under the influence while Dougherty had only one conviction of each. In August 2015, the Defendant was convicted of DWI for a charge stemming from a February 23, 2009 arrest and was convicted of a refusal in November 2015, for a charge stemming from and arrest on February 4, 2009. While serving the seven month sentence for the refusal charge, the Defendant was stopped by the police while operating a motor vehicle. Dougherty was sentenced to a mandatory term of 180 days in jail, which term was stayed pending appeal. Defendant, relying on State v. Ciancaglini, 204 N.J. 597 (2011), argued that a "second or subsequent violation" under N.J.S.A. 2C:40-26(b) requires two convictions of the same predicate offense, rather than one of each. The Appellate Division found that State v. Ciancaglini does not address the issue head on. However, State v. Frye, 217 N.J. 566 (2014), reaffirms In re Bergwall, 85 N.J. 382 (1981), holding that a prior DUI does enhance a sentence for a refusal conviction. Additionally, the legislative history of the DUI statutes is centered upon the premise of discouraging driving under the influence by including ever increasing penalties for successive offenses. The Defendant's basic premise, from State v. Olivero, 221 N.J. 632, 639 (2015) and In re Estate of Fisher, 443 N.J. Super. 180, 190-195 (App. Div. 2015), that the word "or" should be interpreted as "or" rather than "either/or" is incorrect. When considered in the framework of the history and evolution of DWI laws, becoming ever stricter, there is no question as to the interpretation of the statute to include the word "either". The Appellate Division affirmed the defendant's conviction. 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.

Juvenile's Waiver of Miranda Rights Upheld

D.N., was a 16 year old juvenile when charged with offenses that, if committed by an adult would include second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10(a)(4)); defiant trespass (N.J.S.A. 2C:18-3(b)) and obstructing the administration of law (N.J.S.A. 2C:29-1(a)). Police responded to a caller saying that D.N. entered a grocery store after being notified he was not permitted to do so and, during a search, located and seized suspected marijuana from D.N.’s person. In the presence of his mother, at the police station, D.N. was read his Miranda rights and invoked his right to remain silent. Weeks later, D.N.’s mother contacted police and advised them that she had found a handgun in a backpack in her residence and, upon their arrival, consented to a search of the backpack. D.N. was taken for questioning upon returning home. The “Juvenile Miranda Warning” form was used to advise D.N. and his mother of D.N.’s rights under Miranda and D.N. and D.N. agreed to speak to the police. D.N. ultimately confessed to that he had made a deal with a gang member wherein he would be paid to deliver the gun to a third party. D.N. moved to suppress the confession and the judge held that D.N. knowingly and voluntarily waived his rights as he had exercised those rights only weeks earlier. In State of New Jersey in the interest of D.N., D.N. pled guilty to second-degree unlawful possession of a handgun, possession of under 50 grams of marijuana, defiant trespass, and obstructing the administration of law and, pursuant to a plea agreement, the State dismissed the weapons charges. D.N. was sentenced to 2 years probation, community service, drug evaluation and participation in a residential treatment program among other conditions. D.N. appealed the denial of his suppression motion. The New Jersey Appellate Division held that the “suspect’s will was not overborne by police conduct” as is the test under State v. Presha, 163 N.J. 304, 313 (2000). Pursuant to State in the Interest of A.S., 203 N.J. 131, 147 (2010), the presence of D.N.’s mother was given considerable weight in favor of voluntariness of the confession as well. In light of prior opinions and the fact that D.N. had knowingly invoked his right to remain silent only weeks prior, the Appellate Division affirmed the decision of the trial judge. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, weapons offenses, possession of marijuana, trespass or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Robbery Trial 2 Years After Arrest and Right To Speedy Trial

Antonio Jones was convicted of first-degree robbery (N.J.SA. 2C:15-1) and fourth-degree obstructing the administration of law (N.J.S.A. 2C:29-1) in the Superior Court of New Jersey, Law Division. Jones was sentenced to an extended term including life without parole with the sentence for obstruction to be served concurrently. Jones appealed based on the denial of his motion to dismiss based on failure of the State to uphold his right to a speedy trial under the 6th Amendment of the United States Constitution and Article 1, Paragraph 1 of the N.J. Constitution. Jones was arrested in February 2012. In spite of defendant’s repeated requests for the State to provide discovery, the State failed to comply and the matter was delayed. In September 2012, Jones filed a speedy trial motion. In December 2012, the trial judge ordered the State to comply with discovery demands. In February 2013, the state still had not complied and Jones again filed a speedy trial motion. The Superior Court records indicated that the motion was denied in August of 2013 but without reasons set forth. The Superior Court judge merely ordered that no trial would occur until discovery was completed and a trial date was set for February 2014, 2 years after Jones was arrested. As 18 months had already elapsed when the Defendant renewed his speedy trial motion, the N.J. Appellate Division remanded the matter to the Superior Court for a review of Jones’ speedy trial motion under the 4 factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2181, 33 L. Ed. 2d 101 (1972). Under Barker, the balancing test, applied in State v. Cahill, 213 N.J. 253 (2013) includes: (1) the length of the delay; (2) the reason therefor; (3) the defendant must assert his or her right to a speedy trial; and (4) any prejudice suffered by the defendant as a result of the delay. In Cahill, the N.J. Supreme Court considered 1 year as the amount of time triggering further inquiry under the factors set forth in Barker. First-degree robbery is a very serious charge that carries substantial penalties including up to 20 years in prison. The State has to remain within the confines of the law in collecting evidence, your arrest, and presenting evidence and testimony against you. If you have been charged with robbery it is critical you obtain experienced criminal defense counsel to fight for your rights each step of the way. For more information regarding robbery, theft, weapons, distribution and other serious crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Charges Follow Without Miranda After Accident

John Martens was charged with driving while intoxicated (DWI) (N.J.S.A. 39:4-50) after attempting to walk away from his burning vehicle. A passerby reported a vehicle fire and that the vehicle’s driver was attempting to leave the scene. The vehicle had damage to the driver’s side, flat tires and the airbags had been deployed. Investigating officers found only one person in the area who was swaying as he was walking away from the vehicle. The individual admitted he was the vehicle’s owner and that the vehicle struck the median. While speaking with Martens, officers noted his speech was slurred and eye movements were slow. They administered field sobriety tests (FSTs) and arrested Martens. Later, an Alcotest was administered and Marten’s blood alcohol content (BAC) was determined to be .17%. Martens was charged with DUI, reckless driving (N.J.S.A. 39:4-96); failure to maintain lanes (39:4-88); and abandoning a vehicle (N.J.S.A. 39:4-56.6). Among other motions, Martens sought to suppress statements to the officers prior to his arrest based on the fact that he was not read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The suppression motion was denied and Martens entered a conditional guilty plea to driving under the influence, reserving his right to challenge the denial of the suppression motion on appeal. Martens was sentenced as a 3rd time offender and received a 180 day jail sentence, 10 year suspension of his driving privileges, 1 year ignition interlock requirement, 12 hours in the Intoxicated Driver Resource Center as well as fines and surcharges. In State v. John Martens, the New Jersey Superior Court, Law Division, denied Martens’ suppression motions, found him guilty based upon his plea in the municipal court and imposed the same sentence as the municipal court. Martens appealed to the N.J. Appellate Division. Miranda warnings must be administered when a custodial interrogation occurs wherein the suspect has been deprived of freedom in a significant way. State v. Timmendequas, 161 N.J. 515, 614 (1999). Police need not administer Miranda warnings during routine traffic stops. Berkemer v. McCarthy, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 31 (1984); State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005). Martens was asked a limited number of questions and was not subject to the equivalent of an arrest prior to being Mirandized by the officers following the FSTs. The decision of the N.J. Superior Court was affirmed. If you are charged with DUI, you are facing substantial penalties beginning with up to 1 year loss of driving privileges for a first offense up to a maximum of a 10 year loss of driving privileges and 180 days in jail for a third offense. In addition, you face the possibility of losing your job, certain professional licenses and the social stigma that comes with DUI. You need the assistance of an experience defense attorney and should not face these charges without one. For more information about driving while intoxicated, reckless driving, driving while suspended or other serious motor vehicle offenses in New Jersey visit DarlingFirm.com. This Blog is for informational purposes and not intended to replace the advice of an attorney.

Bat Used in Assault Suppressed After Illegal Police Search

Kenneth Barbour was arrested for aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)), resulting from an alleged assault on his neighbor. Upon arriving at the scene, police were told by the bloody victim, that his neighbor used a black baseball bat to strike him in the head following a verbal dispute. Police indicated they used a patrol car loudspeaker to command Barbour to exit his residence as he was thought to have outstanding warrants and possibly weapons in his possession. An individual ultimately exited the residence and was arrested approximately 20 feet from the residence. Police, not having a photo of Barbour and unsure he was the man who exited the residence, entered the residence to conduct a search of the premises for others. The trial court denied Barbour's motion to suppress, and other relief requested, holding that the actions of the arresting officers were legitimate as part of a protective sweep of the residence. Following a jury trial, Barbour was convicted of fourth degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)) and sentenced to 2 years probation. In State v. Barbour, the defendant challenged several aspects of the trial court's decision, including the denial of his motion to suppress the bat alleged to have been used as the weapon in the assault. The Fourth Amendment of the United States Constitution and Article I of the New Jersey Constitution guarantee the right to citizens to be free from unreasonable search and seizure unless certain very narrow exceptions apply. State v. Maryland, 167 N.J. 471 (2001). The New Jersey Appellate Division held that a protective sweep must be limited to "areas in a defendant's immediate control." Such a sweep is valid only when there is (1) a legitimate reason for the officers presence in the residence; and (2) officers have a reasonable suspicion that there is a dangerous individual hiding in the area to be swept and that the burden of proving these circumstances existed is on the State. State v. Davila, 203 N.J. 97 (2010). In light of the evidence and testimony presented that the Defendant was outside when arrested and there was no reasonable articulable suspicion that another dangerous individual was inside the residence, the N.J. Appellate Division found the search and seizure to violate the Defendant's right to be free from unreasonable search and seizure and reversed the denial of the motion to suppress. Assault and attempted assault charges are very serious and bear severe consequences including incarceration, the inability to obtain employment and certain licenses, and social stigma associated with such problems. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, unlawful possession of a weapon, possession of a weapon for an unlawful purposed or other serious criminal charges in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.