DUI Suspicion Is Not A Reason To Draw Blood Without A Warrant

In 2010 Timothy Adkins was arrested for driving under the influence (DUI)(N.J.S.A. 39:4-50), after the vehicle he was operating struck a utility pole, injuring himself and two passengers. Adkins failed the field sobriety tests administered by police and was ultimately taken to the hospital, where the police obtained a blood sample from Adkins. Adkins blood alcohol level (BAC) was .157 percent, almost twice the legal limit of .08 percent. In Missouri v. McNeely, 569 U.S.___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), the U.S. Supreme Court held that the natural dissipation of alcohol from the blood stream over time does not, on its own, give rise to exigent circumstances such that a warrant may be avoided when the police are seeking a blood sample. Therefore, unless the individual suspected of driving while intoxicated is involved in an accident, a warrant is required. In State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013) a trial judge determined that the blood sample taken from Adkins without a warrant was inadmissible. The New Jersey Appellate Division reversed the ruling based on Schmerber v. California, 384 U.S. 757 (1966) wherein the U.S. Supreme Court ruled that drawing blood from an individual suspected of drunk driving was acceptable. In McNeely, the U.S. Supreme Court established a new standard based on the fact that, through radios, cellular phones and facsimiles, obtaining a warrant is a much simpler and expedient process for police. As a result of the ruling in McNeely, the N.J. Supreme Court, in Adkins, DUIdetermined that the results of the blood sample, withdrawn without a warrant, must be suppressed. If you are facing DUI charges, 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, driving while suspended 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.

In DUI A Stay Of Sentence On Appeal Is Not A Right

Scott Robertson was convicted in municipal court of Driving While Intoxicated (DWI) (N.J.S.A. 39:4-50). Robertson was stopped after police observed him to be driving erratically and he admitted to the consumption of alcohol during the motor vehicle stop. Robertson performed poorly on the field sobriety tests and his blood alcohol content (BAC) registered as .13 on the Alcotest machine. He was also charged with failure to maintain a lane (N.J.S.A. 39:4-88(b)), and reckless driving (N.J.S.A. 39:4-96). At trial, Robertson unsuccessfully challenged the admissibility of the Alcotest results based on the unavailability of repair records and diagnostic tests for the Alcotest machine used for his test. Although Robertson received numerous records, there were service related records within the manufacturer which he could not access to which he believed he was entitled. On appeal, the New Jersey Superior Court affirmed. Once again Robertson appealed, this time to the New Jersey Appellate Division which affirmed the DUI conviction holding that under State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) there was no basis for excluding the Alcotest results. Of note, on each successive appeal, Robertson sought a stay of the suspension of his driving privileges. He was sentenced to 7 months loss of license in municipal court and a stay of his suspension was granted, with no reasons stated on the record, to allow for a trial de novo in the New Jersey Superior Court, Middlesex County. At the trial de novo of State v. Robertson, the New Jersey Superior Court judge found Robertson guilty based on both the DVR of the psychophysical tests and the Alcotest results. The defendant again sought a stay of his license suspension based on multiple cases pending certification in the Supreme Court with regard to the ability of those accused of DUI to obtain repair and service records relating to specific Alcotest machines and the possibility of a favorable outcome for the Defendant. The State objected to the stay based on several unreported Appellate Division opinions supporting the finding that the records sought by the Defendant need not be provided. The stay was granted and addressed by the Appellate Division as being governed by a three-part test under Crowe v. DeGoia, 90 N.J. 126 (1982) requiring a showing that failure to obtain the stay would subject the defendant to irreparable harm, that the defendant has a reasonable chance of success on appeal, and there is not substantial harm created by granting the stay. In the case of DUI, the potential for harm to the public by an intoxicated driver creates a special circumstance for consideration and the Appellate Division found that stay of a suspension in a DUI case was not a matter of right pending appeal. With regard to the suppression motion, the New Jersey Appellate Division looked to precedent interpreting Chun. In State v. Maricic, 417 N.J. Super. 280, 288 (App. Div. 2010), the Appellate Division held that, although twelve foundational documents were required by Chun, that did not serve to limit additional discovery requests with a reasonable basis. The Appellate Division also reviewed State v. Carrero, 428 N.J. Super. 495, 507 (App. Div. 2012) holding that DWI cases are quasi-criminal and subject to a more limited discovery than criminal matters. Pursuant to R. 3:13-3(b)(1)(C) and 7:7-7(b)(4) the State is obligated to produce documents within the prosecutor’s custody or control but the Appellate Division reasoned that, although the Alcotest manufacturer’s documents were not within the State’s control, the Defendant could have subpoenaed them from the manufacturer had he felt they would prove to exculpate him. Ultimately, the Appellate Division found the argument that the diagnostic tests were material to the defense to be unconvincing. DWI charges, whether for alcohol or drugs, are very serious charges and can lead to loss of driving privileges up to 10 years as well as incarceration. Additionally, the newly created statute regarding driving while suspended for multiple DUI offenses guarantees a 6 month jail term. If you are facing charges for DUI it is critical that you obtain experienced defense counsel immediately to determine whether you can win your case. For more information about DUI, DWI, DUID, driving while suspended for DUI, 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 DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Facebook Evidence Can Have Limited Value In Sex Crimes Cases

Tony Browne was found guilty of 12 counts of federal child exploitation offenses including production of child pornography, coercion and enticement of a minor, receipt of child pornography, and transfer of obscene material to a minor with females ranging in age from 12 to 17 years old. Browne created a Facebook profile wherein he pretended to be a female and befriended the girls, ultimately obtaining nude and sexually provocative photos from them. Next, Browne utilized another Facebook account under a fictitious name, Billy Button, to threaten to post the photos unless the minors provided more photos or engaged in sexual activity with him. Additionally, Browne sent images to the minors of his erect penis. In United States of America v. Tony Jefferson Browne, Browne’s appeal was rejected but the U.S. Court of Appeals for the Third Circuit did hold that although a preponderance of the evidence showed that Browne did create the messages, there was no way to fully authenticate the records through Facebook’s records custodian. Although the conviction was upheld, the court’s finding was that social media evidence requires authentication which takes into consideration the range of ways in which such information can be manipulated. Sex crime charges can be levied many years after an alleged incident and can result in incarceration, substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sexual assault, rape, endangering the welfare of a minor, internet crimes, child pornography or other sex crimes in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of counsel.

Coffee Drinking In NJ - From Keeping You Alert To A Violation?

The same penalties which apply to using a cell phone while driving, N.J.S.A. 39:4-97.3, in New Jersey could soon apply to drinking coffee or eating while driving if Assemblymen John Wisniewski of Middlesex County and Nicholas Chiaravalloti of Hudson County, both Democrats, get their way. The revisions would subject drivers to a $200 fine for a first offense, $600 fine for a second offense, with a third or subsequent offense subjecting coffee drinkers to up to $800 in fines and up to 90 day loss of license. The Assemblymen are claiming the bill is intended to prevent distracted driving, not punish would be coffee drinkers, but that theory ignores the reality that the effect is the same for drivers. In support of the bill, some are citing enforcement of seatbelt laws and a significant increase in seatbelt use with a corollary decrease in life threatening crash related injuries. The bill is still in its infancy and, as many believe this to be excessive overreaching on the part of Wisniewski and Chiaravalloti, hopes remain high that this bill will garner little support from those responsible for the stewardship of New Jersey. For more information about motor vehicle offenses including using a hand-held electronic device while driving, driving under the influence (DUI), reckless driving and other traffic offenses visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

DUI Case Opens Door To Further Discovery In Municipal Court

Pursuant to the N.J. Supreme Court’s ruling in State v. Stein, a driving under the influence (DUI) (N.J.S.A. 39:4-50) matter, municipal court prosecutors must turn over evidence from all jurisdictions involved in an arrest. The N.J. Supreme Court’s ruling overturned both the trial and Appellate Division rulings on the matter. Robert Stein was involved in a motor vehicle accident on Route 23 in Wayne and a Pequannock officer was the first to respond to the scene. Later Wayne officers relieved the Pequannock officer. Stein was ultimately charged with driving while intoxicated, as a third offender, and found guilty in the municipal court and the N.J. Superior Court, Law Division, Passaic County. He was also charged with careless driving (N.J.S.A. 39:4-97). Stein was sentenced to 180 days in the Passaic County Jail; 10 year loss of driving privileges; 48 hours at the Intoxicated Driver’s Resource Center; required to install an ignition interlock device on his vehicle and substantial fines. Justice Albin drafted the opinion including that Rule 7:7-7(b) requires the municipal prosecutor to provide all relevant evidence, including that from other jurisdictions and the names of officers in possession of knowledge pertaining to the alleged incident. The N.J. Supreme Court agreed with Stein’s argument that any inculpatory evidence could also be exculpatory and needed to be turned over. In Stein’s case, he did not raise or preserve the issue of the failure of the Wayne Municipal Prosecutor to turn over the name of the Pequannock officer for appeal. However, the ruling is relevant and could prove beneficial to those facing charges in municipal court. DUI charges, whether for alcohol or drugs, are very serious and 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 DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Unconstitutional Traffic Stop Leads To Suppression Of Weapons Evidence

Al-Sharif Scriven was charged with second-degree unlawful possession of a weapon, (N.J.S.A. 2C:39-5(b)); third-degree receiving stolen property (N.J.S.A. 2C:20-7); fourth-degree possession of hollow-point bullets (N.J.S.A. 2C:39-3(f)); and fourth-degree possession of a large-capacity magazine (N.J.S.A. 2C:39-3(j)). The Honorable Martin G. Cronin, for the Superior Court of New Jersey, Law Division, Essex County granted Al-Sharif Scriven’s motion to suppress evidence seized during the warrantless search following the stop of a vehicle in which Scriven was a passenger. The vehicle was stopped by an Essex County Sheriff’s Officer for violating N.J.S.A. 39:3-60, driving with high beams on. The State of New Jersey appealed the court’s grant of the suppression motion. The facts adduced at trial were that Scriven was a passenger in a car which was traveling through Newark, NJ in an entirely lawful manner, with the exception of the fact that the vehicle was traveling with its high beams on. An Essex County Sheriff’s Officer observed the vehicle and flagged it down when it came to a stop at an intersection he was near. When the officer approached the driver to advise her that her high beams were on he requested her credentials. While speaking to the driver, the officer detected an odor of burnt marijuana emanating from inside the vehicle which the officer indicated was stronger on the passenger side of the vehicle. The officer asked Scriven to exit the vehicle and Scriven first notified the officer that there was a handgun under his coat. The officer retrieved the gun from Scriven’s person and arrested him. Judge Cronin relied on State v. Witt, 435 N.J. Super. 608 (App. Div. 2014), 219 N.J. 624 (2014), which was directly on point and held that the initial stop of a vehicle is inappropriate when there is no actual violation. In Scriven, there was no oncoming vehicle within 500 feet traveling in the opposite direction as is required in order for a violation of N.J.S.A. 39:3-60 to occur. On appeal, in State v. Scriven, the court looked to State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), which held that when an officer makes a mistake in the belief that a violation exists the mistake does not thereby create a reasonable basis for a stop. The State also argued, under the community caretaking doctrine, the officer was acting appropriately in stopping the vehicle briefly to notify the driver that her high beams were in use. In certain cases, including State v. Martinez, 260 N.J. Super. 75 (App. Div. 1992), wherein a vehicle was traveling less than one-half the posted speed limit at 2:00 a.m., an officer would be justified in stopping the vehicle to insure there was nothing amiss. The N.J. Appellate Division upheld Judge Cronin’s decision and the State again appealed. On Wednesday, July 20, 2016, the N.J. Supreme Court affirmed the decision of the court below suppressing the weapon found on Al-Sharif Scriven as the fruits of an unreasonable search. Second-degree unlawful possession of a firearm or handgun carries up to 10 years in prison with a mandatory parole ineligibility period under the Graves Act (N.J.S.A. 2C:43-6(c)). If you are facing weapons charges you should seek experienced criminal defense counsel immediately. For more information about weapons possession, use or possession of a gun in the commission of a crime, possession of a handgun without a permit, weapons possession while on probation or parole, illegal weapons or other weapons related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

No Jury Trials In NJ DUI Cases

The N.J. Supreme Court ruled that in spite of substantially increasing penalties, driving under the influence (N.J.S.A. 39:4-50) is a motor vehicle matter giving defendants no right to a jury trial. In State v. Denelsbeck, decided May 12, 2016, the court reaffirmed its decision from State v. Hamm, 121 N.J. 109 (1990), wherein it was held that the Legislature, although enacting harsh penalties to deter driving while intoxicated, did not classify DUI as a criminal matter. Penalties for a third or subsequent DUI do not include more than 6 months in jail and thus are not of sufficient impact to require a jury according to the court’s reasoning. In support of this logic is the fact that the court has criminalized driving while suspended for DWI by enacting N.J.S.A. 2C:40-26 which requires incarceration for those convicted of multiple offenses. The N.J. Supreme Court did indicate that, if penalties for DUI became more harsh in the future, they could revisit their decision. If you are charged with DUI, you need experienced defense counsel to protect your rights. For more information about DWI, refusal to submit to breath tests, driving while suspended for DUI, driving under the influence of drugs (DUID), controlled dangerous substance (CDS) and other serious driving charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.