Some Still Say Breathylizer and Alcotest is Already On The Way Out

The Alcotest device which replaced the Breathylizer for driving under the influence (DUI) testing in NJ is already on the way out. The Alcotest was introduced in the late 1990's and was subject to substantial litigation regarding its reliability by 2005. In 2008, the NJ Supreme Court decided State v. Chun and set forth the standards under which the Alcotest could be considered reliable in NJ. Now, software updates to the device as mandated by the Chun court are not available and the online database of readings from the device is corrupt. The device's manufacturer, Draeger Safety Diagnostics, has decided it will no longer employ software developer Ayoka Systems to correct software issues and eliminate issues causing data corruption. Additionally, Draeger will cease to warranty the device in 2016. Rather than employ Ayoka or another company to update the device manufactured by Draeger, the state has opted to find a replacement device for the Alcotest by 2016. Although the Chun court did not indicate Alcotest data from machines without updates would necessarily be corrupt, there are substantial differences between the raw data and the database results. Notably, exceptional results found in the raw data are apparently filtered out by the database. This leaves substantial room to challenge NJ Driving While Intoxicated charges in which the Alcotest is the state's primary evidence. Currently, there is a motion pending regarding the database which may result in a hold on the resolution of DWI cases for a substantial period of time depending on the results of the motion and subsequent challenges relating to reliability of the device and litigants' rights. DUI/DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on driving under the influence, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Can NJ Police Legally Listen to Phone Conversations In Other States?

A Florida man was charged with the crimes of 1st degree murder, 1st degree felony murder, 2nd degree burglary, 2nd degree possession of a weapon for an unlawful purpose, 3rd degree possession of a firearm without a permit; 3rd degree conspiracy to hinder apprehension, 4th degree obstruction of justice and 3rd degree witness tampering as a result of a wiretap initiated by NJ law enforcement. In State v. Ates, 46 A. 3d 550 (N.J. Super. Ct. App. Div. 2012) the defendant's former son in law, Paul Duncsak was on the phone with his fiancee who testified to hearing him shout "no, oh no" then she heard a loud thud. When police arrived they found Dunscak's lock had been picked and he had been shot multiple times at close range. Based on other evidence uncovered during the investigation, Passaic County Superior Court Judge Marilyn Clark issues orders permitting wiretaps for electronic communications between Ates and others. The wiretaps provided police with hundreds of recorded calls, with the inclusion of many calls between Ates and his defense attorney. Ates' defense counsel unsuccessfully filed a motion to dismiss based on the wiretaps of conversations between the two. Bergen County Superior Court Judge Harry Carroll ordered the conversations between Ates and his lawyer suppressed but refused to dismiss the matter. Defendant was convicted of all charges and is now serving a life sentence. The NJ Appellate Division found that the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-3 and 4(d), constitutionally permits wiretaps of calls in other states as the law enforcement agency listening to the conversations is located in New Jersey. The defense challenge centered on the argument that a wiretap warrant should also have been required in Florida, the state in which defendant resided. The matter is to be heard by the New Jersey Supreme Court. If the N.J. Supreme Court determines the wiretaps in Ates were constitutional, it will greatly expand permissible listening powers by NJ law enforcement officials. If you believe police may have illegally obtained evidence against you and you are now being charged with a crime in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information regarding wiretaps, burglary, weapons offenses, drug offenses or other criminal law issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Will Police in NJ Be Permitted to Inspect Cell Phone Contents At Accident Scenes?

If a newly introduced bill relating to NJ motor vehicle safety is passed, police officers will be able to confiscate cell phones under certain circumstances relating to auto accidents in order to assess motor vehicle penalties. The bill also increases penalties for texting while driving. The bill (S-2783) was introduced May 20, 2013 by Senator James W. Holzapfel (D-Ocean). As introduced, the bill permits any police officer coming to the scene of a motor vehicle accident resulting in death, bodily injury, or property damage to confiscate the driver's cell phone if the officer has reasonable grounds to believe the driver was using the cell phone while driving. The bill includes that the officer may review the cell phone's CALL history, however, the pertinent statute Section 39:4-97.3 of the NJ Motor Vehicle Code defines "Use" of a cell phone as including, "but not be limited to, talking or listening to another person on the telephone, text messaging, or sending an electronic. This means police will be reading text messages and emails, viewing installed applications ("aps") on the phone, memos and anything else they wish to view. This will permit the police the right to trounce citizen's rights against unreasonable search and seizure each time a motor vehicle accident occurs. The bill requires no warrant showing probable cause and merely permits police to make a judgment call as to whether the driver was "operating" a cell phone as well as whether a hands-free device or feature was in use at the time of the accident. Even in the event police determine there was no use of the cell phone, there is nothing in the bill limiting their use of any information obtained from the phone for other purposes such as criminal complaints against the driver. Also, it can be assumed the phones of any passengers in the vehicle will also be searched as police claim that a witness saw the driver pass the phone to a passenger immediately following the accident. Given the use of passwords, swipe patterns, voice and face recognition software and other means of protecting the information on personal cell phones, information contained in cell phones is considered private and falls within the expectation of privacy contemplated under the Fourth Amendment. Other penalties include a fine of $100 for calls, $300 for texts, 2 points and suspension of driving privileges for 3 months. If you have been charged with use of a cell phone while driving or face criminal charges as a result of unreasonable search and seizure in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with motor vehicle offenses or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Restraining Orders in Drug Cases

Under the Drug Offender Restraining Order Act of 1999 (DOROA), N.J.S.A. 2C:35-5.7, restraining orders are available to prevent defendants facing drug charges from locations known for drug activity. The NJ Supreme Court's Committee is suggesting rule changes allowing police to seek restraining orders under, via phone or other electronic means. The amendments would permit restraining orders under DOROA to be obtained by following the same procedures employed in obtaining domestic violence restraining orders. The requirements include (1) placing the person making application under oath; (2) the police officer must state the purpose of the request and basis therefore; (3) the Judge must make a record of any application; (4) the defendant must be served a written copy of the restraining order within 48 hours, which must also be filed in the court; and (5) the police officer's sworn statement will be considered an affidavit. If you have been charged with drug crimes or any other criminal offense in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession, distribution or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Prosecutorial Comments to Grand Jury and Prejudice

In the case of drug-induced death and distribution charges, the prosecutor's comments to the grand jury resulted in dismissal of the indictment against the defendant. Police responded to a report of an unconscious male and found paraphernalia at the scene. The man died in the hospital the next day from the drug overdose and police charged defendant who was alleged to have provided the heroin. After presentation of evidence by the prosecutor, the grand jury returned a 2 count indictment of 3rd degree distribution of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) and 1st degree drug-induced death in violation of N.J.S.A. 2C:35-9. On its own, in State v. Eckel, the court raised issue with comments of the prosecutor to the grand jury prior to the grand jury made its decision to indict the defendant. Because the comments precluded the "return" of the indictment, State v. Rhodes required that the Court decide whether the comments could influence the decision of the grand jury, thereby infringing on its decision making function as proscribed by the Court in State v. Hart. By advising the jury of the defendant's criminal history, commenting on evidence proffered, opining regarding questions of fact and commenting directly on the defendant's guilt the prosecutor acted inappropriately requiring dismissal of the indictment. If you are facing drug related or other criminal charges in NJ, it is the prosecution's burden to prove the case against you. In order to make sure your rights to a fair trial are protected, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with theft, burglary, shoplifting or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Prior Crimes Evidence Inadmissible In Theft Trial

In a theft trial, the prosecution has limited ability to present evidence of prior theft offenses. In State v. Lige, defendant was charged with 3rd degree receiving stolen property in regard to a tow truck and license plate. Defendant's prior criminal history included 18 theft convictions in the Superior Court as well as multiple other offenses. The trial court permitted the prosecution to offer witness testimony indicating defendant was in possession of stolen property on at least 6 other instances. The NJ Appellate Division reversed the case and found a new trial was in order as N.J.S.A. 2C:20-7(b), which pertains to receiving stolen property, had been misapplied by the Superior Court. The statute includes that the jury may presume defendant knew the property was stolen if defendant is: (1) in possession of 2 or more items of stolen property on 2 or more separate occasions; or (2) has received stolen property in other transactions within 1 year of the property at issue; or (3) normally transacts in such property but did not make reasonable inquiry into how it was acquired; or (4) is found in possession of 2 or more defaced devices. Under NJ Evidentiary Rule 404(b), evidence of prior crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. In State v. Cofield, 127 N.J. 328, 336 (1992) the Court set forth a 4-part test for determining admissibility under 404(b). In order to be admissible, evidence of prior crimes must be (1) relevant to the material issue in dispute; (2) similar and reasonable proximate in time to the crime charged; (3) clear and convincing; and (4) while offering proof, is not substantially prejudicial to the defendant. Although the evidence presented may have met the criteria of N.J.R.E 404(b), the witnesses proffered by the prosecution presented extensive information to the jury of crimes more than 1 year before or months after the crime charged. In making its decision to reverse the verdict and require a new trial, the Appellate Division held the testimony did not fit within the 1 year statutory limitation or N.J.S.A. 2C:20-7(b) and was therefore inadmissible. If you have been charged with receiving stolen property or any other theft offense in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with theft, burglary, shoplifting or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.