Failure to Give Appropriate Breath Test Refusal Warning Can Result In Acquittal in NJ

Refusal to give a breath sample in a DUI matter carries substantial penalties including mandatory minimum 7 month loss of driving privileges and fines up to $500 for a first offense to a minimum 10 year loss of license to $1,000 fine for a third or subsequent offense. Additionally, if you refuse to submit a breath sample, you may still be convicted of DWI based on the officer's observations while you perform field sobriety tests. In the event you elect not to submit a breath sample into the Alcotest machine and are still charged and convicted with DWI, you will face a loss of license for each offense. Due to the severity of the penalties for refusal being akin to those for the underlying driving under the influence charge, the legislature has structured the warnings given in the event of a refusal to be of the same stricture as those issued for driving while intoxicated. In the recent case of State v. O'Driscoll, Harding Municipal Court Judge Gary Troxell found O'Driscoll guilty of refusal, DWI and possession of an open container of alcohol and Morris County Superior Court Judge Ironson affirmed the conviction on appeal. The Appellate Division overturned the conviction on the grounds that failure of arresting officers to read the current refusal warnings did not satisfy the intent of the legislature in the preparation and requirement of the specific statement regarding the consequences of refusal to submit to breath tests. DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges, or refusal to submit to a breath test, you should seek an experienced attorney to assist you in your defense. Selecting an attorney who knows your rights and is able to avoid a conviction based on mistakes by officers in their attempt to prove your guilt is the difference between keeping or losing your license, as well as a host of other problems that come with a refusal conviction in NJ. If you are charged with refusal to submit to the Alcotest or DUI contact an attorney immediately to protect your rights. For more information on Driving While Intoxicated 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.

How Long is Too Long To Seek Alimony After a Divorce in NJ?

A woman who obtained a Final Judgment of Divorce by default in 1974 filed a motion seeking alimony and child support in 2011 after locating defendant in a Google search. The plaintiff claimed defendant left the country in 1993 and she was unable to locate him. The defendant countered that he was only absent from the country for a few months, never changed his name and always listed his number in the phone book. The Superior Court ordered alimony from the time of the divorce through plaintiff's second marriage and child support from time of divorce until the children's 18th birthdays setting the arearage amount at $144,950. Defendant filed a motion for reconsideration which was granted and the order was vacated due to plaintiff's failure to assert her known right to seek financial support within a reasonable amount of time. Additionally, the plaintiff presented no evidence that she sought the defendant or financial support from him during the 37 years in between the divorce and her motion. Finally, the children are grown adults who had not seen plaintiff since 1974. In any legal matter, the doctrine of latches acts to prevent parties who have not made efforts to enforce their rights from unfairly prejudicing others by seeking relief much later when evidence is gone, great prejudice would result or other equitable reasons. If you believe you have a right to relief within the court, seek an experienced attorney immediately to insure you are not waiving your rights by failure to act. For more information on your legal rights in matrimonial, civil union, domestic partnership, child support, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Minimum Degree of Care for a Minor by a Parent in NJ

In a recent case, the New Jersey Appellate Court held that a parent appearing or being under the influence while children are in their care does not necessarily rise to the level that the Division of Child Protection and Permanency (DCPP, formerly known as DYFS)needs to become involved under N.J.S.A. 9:6-8.21(c)(4). The question that must be answered is whether the intoxication of the parent rose to a level that the parent failed to provide a minimum degree of care, when no actual harm has befallen the child, but instead only a risk of harm has been proven. The answer to this question must be viewed on a case by case basis taking into account the dangers and risks associated with the specific facts of the case. The parent's inebriation must directly cause their inability to care for their children. Justice Long held that "where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk." The DCPP must prove that the parent's condition was produced by a grossly negligent or reckless act that placed the child in imminent danger or substantial risk of harm. For more information on Division of Child Protection and Permanency, child support, spousal support, palimony, alimony, divorce, dissolution of civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. Post contributed by Doreen L. Neggia This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Early Expungement Factors in NJ

Expungement is a means of sealing criminal records for those who made an error in judgment. In order to qualify for an expungement, there is a waiting period, at least 5 years, which must pass without the commission of further crimes. New Jersey has relaxed the timeframe for expungement in certain circumstances. In considering early expungement, the court has set forth certain factors. The nature of the offense must be balanced against the petitioner’s overall character. At all times, it is the petitioner’s burden to prove they are deserving of an early expungement. The State is considered to have met it’s burden of proof at the petitioner’s trial. In the case of a petitioner previously convicted of dealing drugs, the New Jersey Supreme Court held that a lower court erred in considering factors the Legislature did not include in the carefully drafted statute. Although the nature of the drugs sold could not be considered, the number of times drugs were sold, whether they were sold to minors and weather there were weapons involved could be considered. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you have a criminal record that is hindering your ability to obtain employment, the education you want or otherwise negatively impacting your life, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on expungements or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Speedy Trial Still the Rule in NJ?

A driver was stopped for speeding in Lincoln Park, New Jersey and charged with DUI as a result of the stop. In an effort to challenge the officer's probable cause to initiate the stop, the defendant sought discovery regarding the Stalker Dual SL model radar detection device used by the officer to determine his speed. After being convicted in the Lincoln Park Municipal Court, defendant sought a trial de novo and in the Morris County Superior Court, Law Division, Judge Philip J. Maenza found the defendant guilty of DUI and speeding. Defendant sought review by the Appellate Division under claim of violation of his right to a speedy trial. The Sixth Amendment of the US Constitution guarantees the right to a speedy trial which attaches at the time of arrest. In the case at hand, State v. Vanderkooy, the Appellate Division looked to the prior decision in State v. Szima, in which the New Jersey Supreme Court recognized the 4 factors, previously set forth by the US Supreme Court, as determinants of a speedy trial violation. The 4 factors are the length of delay, whether defendant asserted his right to a speedy trial and the prejudice, if any, caused to defendant by the delay. In the case at hand, much delay was caused by the need to establish the reliability of the radar detection device and neither party was to blame nor substantially prejudiced by the delay. If you are charged with a criminal or serious traffic offense you should contact an attorney immediately to protect your rights. For more information on your right to a speedy trial when facing criminal charges or serious traffic charges including Driving Under the Influence 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.

Gay Marriage Cases to Be Heard By US Supreme Court in 2013

2013 will definitely be a year to remember as the United States Supreme Court announced it has decided to hear two gay marriage cases, California's ban on gay marriages and the challenge to the federal Defense of Marriage Act (DOMA). Although not New Jersey cases, the impact for New Jersey residents could be considerable. Even though New Jersey recognizes Civil Unions, same-sex marriages are not recognized. In addition, Domestic Partnerships that were previously entered remain valid, however, new domestic partnerships are available only to couples in which both partners are at least 62 years old. In reviewing DOMA, enacted in 1996, the US Supreme Court will review the way things such as health insurance, medical leave, taxes and similar issues will be handled for same-sex couples. President Obama publicly announced his administration would no longer defend DOMA, as it violated the equal protection guarantees of the United States Constitution, and multiple state courts have declared the law unconstitutional. In reviewing California's Proposition 8 matter, the Supreme Court will directly address the fundamental question of whether same-sex couples have the right to marry. Although the New Jersey Senate and the New Jersey House of Representatives passed the Marriage Equality and Religious Exemption Act, Governor Chris Christie vetoed it. Governor Christie made clear his choice was not to allow "political maneuvering" to decide the issue but to allow LGBT proponents to bring the issue to the ballot where the people of New Jersey can make the final decision on whether same-sex marriage will stand in this state. For information regarding same-sex law in New Jersey, including civil unions, domestic partnerships, adoption, dissolution, custody, child support, support agreements, property division or other legal concerns of gay, lesbian, bisexual, transgender couples 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.

Criminal Charges Can Affect Your Immigration Status in NJ

Failure to understand immigration consequences is not always the reason for pleading guilty to criminal charges in New Jersey. The case of State v. Nunez-Valdez (200 N.J. 129 (2009)), resulted in substantial changes in the way criminal pleas are handled where there may be negative immigration consequences. In a case where defendant, in the country illegally at the time, was charged with third degree burglary, third degree resisting arrest and second degree attempted aggravated arson to and entered a plea to third degree burglary and fourth degree defiant trespass in the Hudson County Superior Court. The plea agreement permitted the State to argue that the court sentence defendant to a term of up to three years but defendant's lack of criminal record made it likely defendant's argument for a probationary sentence involving participation in an alcohol abuse program would prevail. At sentencing, defendant stated he was aware intoxication might be a defense to some of the charges included yet waived the right to assert that defense. Defendant later made application for his green card then was arrested by Immigration and Customs Enforcement (ICE) and detained at the Essex County Correctional Facility as a result of the Hudson County conviction. At that time, defendant began to assert his innocence and stated he would never have entered a guilty plea had he known the immigration consequences. The New Jersey Appellate court found defendant knowingly and voluntarily entered the guilty plea in order to receive a probationary sentence rather than incarceration. They Appellate Court also decided that any immigration consequences to defendant could not be linked directly to the guilty plea due to the passing of years between the plea and the detention. Criminal charges of any kind, including shoplifting, should not be taken lightly if you are not a U.S. citizen. If you are not a U.S. citizen and you have been charged with a crime you should seek an experienced criminal defense attorney immediately to protect your rights and immigration status. For more information on criminal or 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.