Fleeing the Police Does Not Always Give Probable Cause to Arrest in NJ

The police must have probable cause to stop and search without a warrant. A man exited a residence which was under surveillance by Newark police detectives investigating a shooting. Detectives watched the man stand on the porch until another man, the co-defendant, approached. The defendant stepped off the porch to speak with the co-defendant and co-defendant showed him what appeared to be a gun. Defendant looked at the object but never held or possessed the object. When the detectives approached, the defendant ran back onto the residence with a detective in pursuit. The detective tackled defendant into the residence as he was entering the door and saw weapons in plain view. The detective observed a shotgun, 3 long rifles and a stock of ammunition. Defendant was charged with illegal possession of the weapons and made a motion to suppress the guns at trial. In a case relating to probable cause to stop and search without a warrant, the NJ appellate court reaffirmed the prior decision, in Illinois v. Wardlow, setting forth the premise that flight alone cannot be used to justify stopping those who flee the police. The Court must look at the overall circumstances to determine whether the police could have had reasonable suspicion that the defendant was involved in criminal activity. 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 are facing criminal charges as a result of a wrongful arrest or illegally obtained evidence and believe you may be entitled to suppression of the confession, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on probable cause, reasonable suspicion or other criminal law or municipal court issues in New Jersey visit HeatherDarlingLawyer.com.

When Juveniles May Be Tried As Adults in NJ

Most NJ juvenile matters are under the jurisdiction of the Family Court. Upon satisfaction of the probable cause standard, prosecutors can obtain waiver of juveniles 14 or older to adult court if the juveniles commit certain enumerated crimes. In the case of juveniles ages 16 and 17, there is no right to present evidence of a reasonable prospect of rehabilitation outweighing the reasons supporting waiver to an adult trial. In a recent case in which juveniles seeking revenge were charged with murder, aggravated assault, conspiracy and attempted murder were fighting transfer from the Family Part to adult court, probable cause under the waiver statute was re-affirmed by the court as "a well-grounded suspicion or belief that the juvenile committed the alleged crime. " The court further held that if the state presents evidence, with reasonable inferences, that leads to a well-grounded suspicion that the juvenile committed one of the enumerated crimes then the probable cause for waiver standard is satisfied and the juvenile's matter may be transferred to an adult trial. Juvenile matters are extremely sensitive in nature as they may result in a criminal record which destroys the hope of certain educational and employment opportunities for the remainder of the juvenile's life. If your son or daughter is facing criminal charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on juvenile criminal matters including municipal court 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.

Child Can Seek Emancipation Over Objection of Parents

In the event a child is no longer within the "sphere of parental influence" they may be emancipated. In most cases, it is one or both parents seeking to terminate support or avoid the cost of the child's college tuition. The New Jersey Superior Court heard a case of first impression in the matter of Ort v. Ort when a child sought emancipation. Typically, under the laws of the State of New Jersey a child is not considered emancipated if the child is still enrolled in school, including post-secondary education, on a full-time basis. Parents of a very mature young lady had divorced years earlier but continued a lengthy post-judgment battle regarding child support and other issues. Rather than have her educational opportunities limited by her father's interest in keeping his responsibility for her college tuition to a minimum, the child arranged her own college funding through education grants and tuition assistance programs which she could obtain on her own. The judge hearing the matter found no evidence of immaturity, incompetence, disability, delinquency, truancy, disorder or other negative behaviors which would give reason for concern regarding her decision making ability. The judge also reasoned that, at 18, a child becomes an adult for the purposes of voting, marrying without parental consent, enlisting in the military, enrolling in the pension system and purchasing firearms. Typically, a parent retains control over a child seeking the continued support of a parent. However, if a child is self-supporting while still enrolled in school full-time, there is no reason for a parent to retain control over the child. If you are seeking or fighting the emancipation of a child, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family or juvenile law 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.

Alimony and Property Settlement Awards Require Specific Findings of Fact

The court may not make an award of alimony or equitable distribution without including ample evidential support on the record for its finding. The New Jersey Appellate Division reaffirmed the fact that the court must make specific findings of fact when making such decisions when it reviewed the case of Bice v. Bice. The NJ Appellate Division held "the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including specifically, but not limited to, the factors set forth in this section." N.J.S.A. 2A:34-23.1. The factors include the length of marriage or civil union, age and health of the parties, income or property they brought to the relationship, any pre-nuptial or ante-nuptial agreements, their economic circumstances, income, earning capacity, education, training, skills, time out of job market, child-rearing responsibilities, any contribution by one party to the earning capacity of the other, the contribution of each to acquisition of marital assets, tax consequences of the distribution to the parties, debts, career deferral by either party and any other factors the court deems relevant. If you are considering divorce or dissolution of a civil union you will be addressing spousal support and equitable distribution and should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, equitable distribution, child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications or other family law 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.

Are You Being Tracked Through Your Cell Phone?

Use or possession of a cell phone comes with a big price tag if you have committed a crime in New Jersey. Law enforcement may contact your cellular carrier and track the location of your cell phone in the event they suspect you of committing a crime. In the event the police obtain a warrant to retrieve information from your cellular carrier, this method of tracking is legal. The warrant requirement subjects the police to show probable cause to believe a crime has been committed and you are the one who committed it to an impartial judge prior to the judge issuing the warrant. In State v. Earls, a burglary case, the court will rule on whether the police may seek information regarding your location from a cellular carrier without first obtaining a warrant. In the event the court upholds the warrantless tracking by police that occurred in Earls, the police power to monitor your cell phone will render your cell phone a constant signal of your location and movements. By simply owning a cell phone, you will lose ample privacy rights as the police will be able to track you whether you are in "plain view" or not. Within the Constitution the right to privacy was created and a decision in favor of the State in Earls would serve largely to strip away this right. If you believe you have been the victim of an illegal police search, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information regarding warrantless searches, your rights in criminal matters, burglary or other criminal law 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.

Women Still Face Unequal Rights in NJ

If the wife of an infertile man has a child through artificial insemination, the man is presumed to be the father and all rights of paternity vest in that man. The laws of nature prevent a man from bearing a woman's child and the laws of New Jersey prevent an infertile woman from being listed on the birth certificate of a child born to a gestational carrier artificially inseminated by the wife's husband. Not only has the court opted to deprive infertile women of equal rights to infertile men but the New Jersey Court, in the Matter of the Parentage of a Child by T.J.S. and A.L.S., expressed concern for gestational carriers over infertile women. However, gestational carriers and infertile mothers both entered a contract on equal terms, along with the husband of the infertile woman, in which the gestational carrier agreed that the child would know the infertile woman as its mother from the time of birth. For the court to step in and say the infertile woman may not be listed on the birth certificate while saying an infertile man is presumed to be the father and listed on the birth certificate is placing women in the status of property and is discriminatory. If you are seeking custody of a child, fighting a change in custody or considering adoption, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child custody, paternity, child support, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law 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.

Police Cannot Arrest For The Purpose of Obtaining Evidence Without Probable Cause

A police officer in Hackettstown observed the defendant stagger across route 46 and enter a vehicle then proceeded to stop the vehicle and arrest the defendant for disorderly conduct and being under the influence. Upon placing the defendant under arrest he conducted a search of the defendant's person and discovered 2 bags of heroin on the defendant's person and defendant was ultimately charged with 3rd degree possession of a controlled dangerous substance, heroin, and being under the influence of a controlled dangerous substance (CDS) without a prescription. Defendant challenged the legality of the search and seizure and filed a motion to suppress the evidence but the motion was denied. The New Jersey Appellate Court reversed the trial court and held the officer did not have probable cause to arrest the defendant when he was simply a passenger in a vehicle. In finding there was no probable cause, the court order that the evidence obtained from the search incident to arrest was to be suppressed. If you believe your rights have been violated through an illegal search and seizure, you should consult an experienced criminal law attorney immediately. For more information on search and seizure, CDS, under the influence, disorderly conduct or other criminal law 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.

Court Fails to Consider Intent of Domestic Violence Statutes

Under the New Jersey domestic violence statutes, the non-abusive spouse is to receive custody of the children barring extenuating circumstances. New Jersey Statute 2C:25-29b(11) includes a presumption that the best interests of the children are served by an award of custody to the non-abusive parent. Additionally, exclusive possession of the marital residence is granted to the non-abusive party and the best interests of the children are further served by remaining in the home they are accustomed to. In the recent case, J.D. v. M.A.D., the New Jersey Appellate Division reversed the decision of the trial court which continued the parties agreement granting the abusive defendant temporary custody of the parties' children and possession of the martial home. The trial court erroneously held that defendant should continue as the primary caregiver of to the parties children. The trial court failed to properly consider that Defendant became the primary caregiver and obtained sole custody of the marital residence after excluding wife therefrom following multiple episodes of domestic violence when he discovered she was having an affair. The basis of the Appellate Division's reversal was the intent of the Prevention of Domestic Violence Act to protect victims of domestic violence. The N.J. Appellate Division also pointed to the correlation between domestic violence and child abuse in reversing the decision regarding who was to be primary caregiver. If you are facing a custody dispute as a result of a domestic violence matter, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child custody, domestic violence, paternity, child support, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law 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.

Limitations of Police as Witnesses at a NJ Criminal Trial

At trial, physical specimens, such as weapons used in commission of a crime, are used as evidence to convince jurors of certain facts. However, the prosecution or defense must use verbal testimony to explain their case to the jury. Even physical evidence has little significance without adequate explanation of why it is being presented. In light of the critical nature of verbal testimony at trial, there are written rules of evidence relating to how evidence may be presented. When a prosecutor or defense attorney questions a witness, they are asking carefully contemplated questions in an effort to have the witness state certain facts to the jury in a way that proves their own client's case. If the questions are out of line in some way, the attorney for the other party will object to the question. Similarly, there are written rules regarding what certain witnesses may testify to. Witnesses may be presented as qualified experts regarding certain issues in a case which allow them to offer "expert testimony" as to those particular issues. Most often, prosecutors use police and victims to make a case against the defendant. This is where an experienced and skilled defense attorney can make a big difference in the outcome of the defendant's case. Police may testify about the facts of an event but may not give opinion testimony unless they are qualified as experts to give such testimony. In a recent case, a defendant was charged with possession of a controlled dangerous substance (CDS) with intent to distribute, possession of CDS with intent to distribute within a school zone, employing a juvenile in a drug-distribution scheme and conspiracy to distribute CDS. The New Jersey court held that testimony offered by police of their beliefs regarding the occurrence of a crime, the involvement of a juvenile in the alleged crime and the character of the neighborhood in which the alleged crime occurred was opinion testimony inadmissible at trial. The court held the opinion testimony of the police to be so prejudicial to the defendant that a new trial was ordered in the matter. 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 face criminal charges you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Spousal Misconduct May Bar Alimony in NJ

In New Jersey, spousal misconduct is typically no bar to receipt of alimony to that spouse even in the event of adultery or significant depletion of the parties' funds. In Mani v Mani, 183 N.J 70 (2005) the NJ Supreme Court set forth two exceptions to this rule pertaining to financial matters between the parties. One exception is where the conduct of a spouse "affects the parties' economic life." The second exception comes into play when the actions of a spouse "so violate societal norms that continuing the economic bonds between the parties would confound notions of simple justice." If you are seeking a divorce and know or strongly believe your spouse's behavior has drastically altered your lifestyle financially you should speak with an experienced family law attorney immediately to protect your rights. For more information on alimony, support, equitable distribution, child support, palimony, divorce, dissolution of civil union or domestic partnership or other family law 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.

DUI Defendants loss An Opportunity To Escape Guilt in NJ

The main evidence used against drivers accused of driving under the influence is the Alcotest result. The Alcotest accuracy depends on multiple factors including calibration of the machine and various components thereof. It also depends on multiple other factors which the 20 minute observation period and removal of radios and cell phones from the room are designed to compensate for. The New Jersey Court recently held that defendants are not permitted to examine the rooms in which the machine is housed or the observation period occurs unless they have "a particularized" reasonable basis to believe the room's design or location had an actual bearing on their testing results. Although the Appellate Court ruled against the inspections because they found the Alcotest had been proven to be "well-shielded from" potential interference in prior matters the legislature called for a 20 minute observation period prior to administration of the Alcotest as well as including the requirement that all radios and cellular devices be removed from the room. The differing opinions of the legislature and judiciary in this matter leave this issue ripe for further dispute. DUI/DWI in NJ is not taken lightly in any case and can have significant implications in related matters such 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 While Intoxicated, 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.

Drivers Can Be Charged With Multiple Refusals as a Result of a Single Event in NJ

In State v. Nunnally, 420 N.J. Super. 58 (App. Div 2011), a defendant in was charged with refusal to submit to a breath test under the DUI statute but not under the CDL statute. When the officers were alter unable to prove that the driver was under the influence, they attempted to charge the defendant with refusal to submit to a breath test under the CDL statute. The Bergen County court addressed the matter and concluded that CDL refusal is not a lesser included offense of a general DUI refusal because each requires proof of a different set of facts and the Appellate Division affirmed. The CDL refusal statute requires proof the arresting officer had probable cause to believe the person had been operating or was in actual physical control of a commercial motor vehicle on the public highways or quasi-public area with a blood alcohol concentration (BAC) of .04% or greater. This differs from the general DUI statute which requires proof the driver is under the influence of intoxicants rather than simply having a BAC of .04% or greater. As a result of the officers failure to charge him with CDL refusal within 90 days of the incident Nunnally was only held to account for the general DUI charge. Although Nunnally escaped prosecution under the CDL refusal statute, it is an uncommon event that officers would not bring complaints for all significant charges against a driver, including the often minor issues which gave rise to probable cause in the matter. Penalties for DWI are severe, including jail, loss of license, significant fines, court ordered counseling for drugs and alcohol as well as installation of ignition interlock devices. Interlock devices are expensive to install and require payment of monthly fees, as well as visits to certified inspectors to insure proper operation of the device during the install period. If you are charged with a DUI, you should seek experienced defense counsel immediately to protect your rights. For more information on DUI, driving while intoxicated, refusal to submit to an Alcotest (formerly Breathylizer), CDL refusal, CDS in a motor vehicle or other serious driving related charges visit HeatherDarlingLawyer.com.

Right to Refuse Consent to Search in NJ

When law enforcement officers want to undertake a search, absent exigent circumstances (learn more about exigent circumstances by visiting HeatherDarlingLawyer.com), they are required to obtain a warrant or obtain consent of an individual who has authority over the place or item to be searched. If you are confronted by law enforcement officers, you have a right to refuse consent to search. More importantly, the officers are required to advise you very clearly of your right to refuse consent. The officers should make sure you have enough of an understanding of that right to make a decision as to whether you wish to provide consent or not. In the event officers have the opportunity to advise you of your right to refuse consent but do not do so before you offer consent and a search is undertaken of your property, any evidence discovered through the search may be suppressed. Furthermore, at all times during a search in which you have provided consent, you must be present and aware of your right to stop the search at any time. In order for a consent search to be valid, the officers conducting the search must 1) advise you of your right to refuse consent; 2) insure you are able to watch them conduct the search; 3) make you aware of your right to stop the search at any time; and 4) stop the search immediately in the event you withdraw consent. 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 face criminal charges and believe you were subject to an illegal search, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on consent searches, search and seizure, illegal search, warrantless search, domestic violence, anonymous tips or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.