Automatic Expungement of Criminal Records in NJ

The New Jersey Assembly Judiciary Committee recently approved bills which, if they become laws, will allow for the automatic expungement of criminal records for those successfully completing drug court and those convicted of an indictable offense who have no prior or subsequent convictions, those convicted of disorderly persons or petty disorderly offenses, and those adjudicated delinquent of acts for which automatic expungements would be allowed. The courts are in opposition to this bill because it shifts the burden of expungements from the party to the court. The court points to the substantial burden on their resources from doing the additional work lawyers normally handle in the expungement process. It could be a while before we see automatic expungements in NJ. If you have a criminal history that is holding you back from obtaining jobs, promotions, entrance into certain schools or otherwise negatively impacting your life, contact an experienced criminal defense attorney to see if you are eligible for an expungement. For more information on expungements or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Law Enforcement and Wiretapping in NJ

In State v. Ates, the NJ Court upheld, as legal, wiretapping by the Bergen County Prosecutor's Office of defendant's cell phone calls. The defendant was convicted of murder after his former son-in-law, Paul Duncsak, was shot 7 times at home in Ramsey, NJ. The wiretap was authorized by Passaic County Superior Court Judge Marilyn Clark and took place for a 2 month period of time. Hundreds of calls were recorded, including calls between Ates and his attorney which were protected by the attorney-client privilege. The defense sought to suppress the information obtained from the wiretap but, in spite of the defendant's assertions of prosecutorial misconduct, the Court held that only wiretaps following the first call between Ates and his attorney needed to be suppressed. If you are accused of a crime, taking the wrong actions may result in disastrous negative consequences to you, your family and your life. In the event you are the subject of a criminal investigation, you should speak with an experienced criminal defense attorney immediately to insure your rights are protected. For more information on New Jersey criminal law matters visit HeatherDarlingLawyer.com.

DUI Refusal and Future Sentencing in NJ

Currently the law in New Jersey is that a prior conviction for refusal to provide a breath sample, by either Alcotest or the Breathylizer device used in the past, is not counted as a prior driving under the influence charge for sentencing purposes. In State v. Canciaglini (10 A.3d 870 (2011)), the NJ Supreme Court made the determination that refusal conviction was not the same as proof of guilt and therefore, could not be considered as a prior DWI for sentencing purposes. New legislation, A-504, proposed in January 2012 by Assemblyman Nelson T. Albano (Democrat) of Cape May, NJ is now pending before the Assembly Law and Public Safety Committee which would change the existing state of the law as determined by the court. If this bill passes prior convictions for refusal to provide breath samples will constitute a prior conviction for driving while intoxicated or under the influence for purposes of future DUI convictions in NJ. When facing any kind of municipal court or criminal charge in NJ, you should always make sure you are fully aware of the present and future consequences of a guilty plea or verdict. Because of the serious consequences of such charges, it is never a good idea to address charges without the assistance of an experienced criminal law attorney. For more information regarding municipal or criminal legal matters, visit HeatherDarlingLawyer.com.

Pending Change to NJ DUI Laws

Loss of license in NJ may bear less severe consequences if newly proposed legislation is passed. This legislation, currently pending in the New Jersey Senate, will supplement the NJ DUI/DWI Statute(N.J.S.A. 39:3-40) by incorporating an allowance for a "restricted use license." Often, for those convicted of driving under the influence, loss of license is the most severe penalty, far outweighing fines and other penalties. For most working adults, especially those supporting families, loss of license directly impacts one's ability to earn a living by limiting or eliminating their ability to get to their place of work. For drivers who rely on a CDL for a living, the hardship is even greater. The restricted use license was eliminated in NJ years ago in an effort to enhance the penalty for driving while intoxicated. In today's economy jobs are hard to get and keep. Also, those enrolled in an educational program whose matriculation depends upon attendance in a classroom or facility may also be eligible for a restricted license if this legislation is passed. A CDL driver needing to operate a vehicle as a condition of employment may also apply for this license. In order to obtain this provisional license, an individual would need to provide job or school information including hours and location. No public transportation to the applicant's job may exist within 1 mile of the applicant's residence. There must also be proof that no other reasonable means of transportation exists. The key factor will likely be a showing of financial hardship if the applicant is unable to personally operate a vehicle. Other criteria will include the circumstances surrounding the DUI and the probability of another offense by the applicant. Once again, this legislation is pending and will likely encounter substantial opposition but it does indicate a recognition of the hardships faced by NJ drivers as a result of a DUI conviction. For more information on DUI and other municipal court charges in NJ, visit HeatherDarlingLawyer.com.

The Validity of Police "Stop and Frisk" Procedures in NJ

The New Jersey Courts are to enforce the Constitutional right of the public to be "secure in their persons, houses, papers and effects." State v. Tucker, 136 N.J. 158, 165 (1994). A warrantless search must fall within certain carefully detailed exceptions to the warrant requirement. The same is true when a person is seized, which is measured by circumstances under which a reasonable person would not feel free to leave. A police officer may detain a person for a short period if the stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Terry v. Ohio, 392 U.S. 1, 19 (1968) During such a stop, it is permissible for the officer(s) to conduct a limited pat-down search to determine whether the individual is armed in order to ensure officer safety. The evaluation of the validity of such a stop, and any accompanying search, is determined on a case by case basis, therefore subject to interpretation by the judge or jury when presented. A minimum showing that there was some reason to suspect that criminal activity was afoot is required to meet this burden. Recently, the NJ court had reason to decide, in State in the Interest of D.B., whether, when stopping one individual for questioning based on a valid suspicion, the officers could also detain a second individual, D.B. in the company of the suspect being questioned. The court held that the officers had the right to detain the second individual while they made an inquiry into the activities of the first individual but did not have the right to search the second individual unless he or she was also reasonably suspected of proximal participation in criminal activity. In the case of D.B., the police found marijuana on the person of D.B. during the stop yet it was soon revealed that neither individual was involved in the crime which recently occurred and for which D.B.'s companion was suspected. Although the trial court denied the suppression motion, the appellate division reversed and held the evidence should be suppressed because the officers had no reason to pat down D.B. The interpretation of the legality of a search is critical to a defendant. The manner in which the totality of the circumstances is presented by the prosecution and the defense is how the judge or jury will form their opinion and make their decision as to the validity of the search or seizure. When facing criminal charges it is critical that you have an experienced criminal defense attorney at your side. For more information on search and seizure, Terry stops or criminal law in NJ, visit HeatherDarlingLawyer.com.