DUI- Blood Required Without Probable Cause?

The New Jersey Assembly and Senate have proposed an amendment to the Driving Under the Influence Statute requiring a breath or blood sample be obtained at any time a person “operating a motor vehicle is involved in an accident resulting in the death or serious bodily injury of another person.” If passed, this will allow a breath or blood sample to be taken even if there is no probable cause or reasonable suspicion to believe the driver was under the influence of drugs or alcohol. The requirements of probable cause and reasonable suspicion were established to protect the constitutional rights of the people from unreasonable search and seizure, which is exactly what this legislation would allow. In a statement as to the intent or purpose of the legislation, the Senate set forth in its statement regarding S-359, that the bill would “require police officers to obtain a breath or blood sample” in the event there is an accident resulting in death or serious bodily injury to another.” Often, the severity of injuries from a motor vehicle accident is unknown until days or weeks after the accident. Alcohol will not, and drugs may not, remain in a person’s system for as long as it takes to determine the seriousness of harm suffered from the accident. This is a slippery slope which will give rise to the “need” for taking of breath or blood samples from each and every individual involved in a motor vehicle accident with the stipulation that, if serious bodily injury does not occur the results will be suppressed. Following will be the issue that, even in the event there is not serious bodily injury, the State now has conclusive evidence that a defendant operated a motor vehicle on a public road in violation of the New Jersey Driving While Intoxicated statute, N.J.S.A. 39:4-50, which is a per se violation, whether there was a motor vehicle accident or not, and will lead to prosecution of defendants without the required showings of probable cause or reasonable suspicion every time a driver is involved in an accident and found to have any controlled dangerous substances (CDS) or a blood alcohol content (BAC) of .08% or greater. The Assembly, in A-1225, has included a certain level of protection by adding that “a person operating a motor vehicle involved in the accident who the investigating police officer concludes has not contributed to the accident whatsoever shall not be required to submit a breath or blood sample.” Much like the time period required to determine whether serious bodily injury resulted from an accident, accident investigations often take time and will again give police the “need” to take blood or breath samples immediately so as not to lose potential evidence. DUI/DWI in NJ will have a serious impact on your life 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.

Proposition 8 in the U.S. Supreme Court

After the first day of the United States Supreme Court hearings relating to same-sex marriage, as they considered California's Proposition 8 ban on same-sex marriage, little is known about what the Supreme Court will decide. In fact, from Justice Kennedy's comments, whether the Supreme Court will decide the question of Proposition 8 at all is on the minds of those following this issue which will make so much difference for so many. Yesterday's comments by Justice Kennedy regarding the Court's need to tread lightly when entering "uncharted waters" and that reference to the destination in the court's decision being "a cliff" left some believing that the U.S. Supreme Court may dismiss Proposition 8 and leave the issue of gay marriage to the states for at least another year. If the Supreme Court dismisses the matter of Proposition 8, only California would be affected. Gay and lesbian marriages in California could proceed but the issue of same-sex marriage in other states would not be impacted. The statements of the Justices will now weigh on the minds of many until June when the decision is expected. Today the Supreme Court will hear arguments as to whether the 1996 federal Defense of Marriage Act (DOMA) should be struck down. DOMA denies federal benefits to married gay and lesbian couples even in states where same sex marriage is recognized and accompanied by the benefits thereof. As of now, 30 states have constitutional amendments which prohibit same-sex marriage and there are only 9 states which recognize same-sex marriage. For more information on civil union, marriage, domestic partnership, pre-nuptial agreements, post-nuptial agreements, palimony agreements, dissolution, divorce, child support, custody, parenting time/visitation, adoption, 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.

Be Aware of Affirmative Defenses in Your Criminal Matter

A defendant charged with murder and weapons offenses pled guilty to first-degree aggravated manslaughter. At the plea hearing, defendant’s attorney stipulated that the circumstances surrounding the killing amounted to extreme indifference to human life. Following the entry of the guilty plea, the defendant was interviewed by a probation officer and stated, during the interview, that defendant was armed with a gun for protection after being robbed by the victim on more than one occasion. Defendant advised that the victim attempted to attack defendant with a knife on the date of the incident and defendant retreated until his back was against a vehicle and he could retreat no further. It was only upon having nowhere to flee that defendant shot the victim. The surrounding facts supported defendant’s assertions and defendant was permitted to withdraw the guilty plea in light of the existence of a “colorable claim of innocence based on a plausible defense of self-defense.” 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, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on criminal law, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Relief for Payors Suffering After High Net-Worth Divorce

In a recent post-judgment motion following a high net-worth divorce, a modification motion by payor resulted in a finding that the court must consider not only changes in the payor's income but also changes in the payee's income when hearing motions for modification. In Heard v. Dunbar The judge hearing the divorce did not include any findings regarding the terms of the parties' Property Settlement Agreement. Defendant earned $800,000 per year working at Goldman Sachs until 1997 when he resigned after accusations of fraudulent activity. The parties had saved $800,000 and defendant became a day trader working with their personal funds and increased the value of their investments to $8,000,000.00 by 2000, when the parties separated. In the next 2 years the value of the portfolio decreased to only $304. Defendant returned to the financial industry as the manager of a "start up" investment fund and earned only $15,000 in 2003 when the parties entered the Property Settlement Agreement (PSA). Plaintiff was employed as a psychologist and earned $52,000 per year in 2003. Although the defendant earned only $1250 per month, the PSA called for him to pay $1885 per month in child support. Although defendant later represented, in 2011, that the payment was based on the presumption he could return to his previously high earning levels, no information was set forth in the PSA regarding how this figure was arrived at other than to state it was in accordance with the "marital standard of living" but the standard of living during the marriage was not set forth in the agreement. The PSA also called for defendant to provide plaintiff $2,000,000 in assets as equitable distribution in lieu of alimony, pay up to $250,000 for the child's college tuition and obtain a $2,000,000 life insurance policy. Defendant ultimately developed a career in real estate and, by 2011, was earning $119,000 annually while plaintiff's income had increased to $115,000 per year. Plaintiff filed a Motion to Enforce the agreement and defendant filed a cross-motion to decrease his child support and college tuition obligations. An Essex County Family Court Judge denied defendant's motion finding no appreciable or permanent change in circumstances from 2003 to the present time, granted plaintiff's motion, failed to acknowledge plaintiff's substantial increase in income and made no findings regarding the denial of defendant's motion to reduce college payments and insurance. In its opinion, the New Jersey Appellate Court set forth the standards for modification as requiring consideration of the circumstances of both parties and that the reasons for all findings of fact be set forth clearly on the record. If you are seeking a modification of child support or alimony, 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.

Substituting Juror After Deliberations Start is Error

Defendant was convicted of murder, possession of a weapon for an unlawful purpose, unlawful possession of a weapon and hindering apprehension. Defendant appealed his conviction on the grounds that an alternate juror was seated after more than 6 days of deliberations. The importance of an impartial jury cannot be overstated. The right to a jury made up of disinterested citizens is a critical component of the criminal justice system. Although a judge is expected to be an impartial trier of fact and the prosecutor is charged with the duty of fairness in the prosecution of a defendant, they are nonetheless employed by the very system seeking to convict the defendant. In a matter so important as to deprive a defendant of liberty and opportunity fairness and impartialilty is critical and cannot be deemed met by the substitution of an alternate juror who may be easily influenced by others advantaged by 6 days of deliberations. This fact is especially evident when the jury, which had been previously deadlocked for 6 days prior to the substitution, found the defendant guilty on the fourth day of deliberations after the substitution. The court, in State v. Ross, found the mere fact that the jury was instructed to start over with deliberations when the alternate juror was substituted for an ill juror does not rise to the level of fairness defendant is entitled to when facing such substantial charges. Little will have a more serious impact on your life than a murder charge. If you are facing serious criminal charges you should seek an experienced attorney immediately to protect your rights. For more information on criminal 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.

Blood Drawn For Medical Care Used in DUI Prosecution in NJ

In matters where probable cause exists to believe you were driving under the influence of intoxicating substances the police may obtain blood drawn for the purposes of treating you medically and test for the presence of intoxicants. Although driving on the roads of New Jersey creates an implicit agreement that, if you are suspected of DUI, you will provide breath or blood samples, you retain the right to refuse to provide such samples and face the penalties of refusal statutes instead. In cases where an accident has occurred, often the defendant is unconscious and cannot offer or deny consent. In other cases, a conscious defendant may consent to a physician or other hospital employee taking blood in the event a transfusion is needed or for other medical reasons outside the presence of law enforcement officers. In these cases there may be no request whatsoever at the time of treatment from police officers for consent to test the defendant's blood for intoxicants. However, the police may still attempt to obtain samples of the defendant's blood to prove guilt in a DWI case against the defendant. DUI/DWI in NJ will have a serious impact on your life 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.

Risk Assessment Is Required if Requested By A Party in NJ Parenting Time Decisions

A New Jersey statute, N.J.S.A. 2C:25-29(b)(3)(a) requires a risk assessment prior to the entry of a parenting time order if either party requests one. This statute is designed to protect children but has potential for abuse by a resentful party. Because a risk assessment may be ordered when establishing the initial parenting time or any time thereafter for modification motions, it is one which may be used by a resentful party against another to cause further stress during or after the dissolution of a relationship in which children are involved. Fortunately, if the Court finds that the request is arbitrarily designed to cause difficulty for the defending party and has no real basis, the court need not order a risk assessment. In many situations risk assessment requests will not be ordered by the court. However, in cases where this is a final restraining order (FRO) against the party, there are concerns about drug or alcohol use, there are signs of inadequate supervision during parenting time and similar issues, the court will have reason to order a risk assessment. During the pendency of the risk assessment, parenting time may be limited or suspended. Risk assessment is a lengthy process which involves a court appointed professional meeting with each party to make an evaluation then preparing a report to the judge which will likely be relied on by the judge in making the final decision after a hearing in which both parties appear after the report is complete. When being assessed, either party may provide statements, witnesses, medical records and other evidence to prove their case. If you are seeking or defending a change in custody in which you believe a risk assessment will or should be involved you need an experienced family law attorney by your side to protect your rights. For more information on parenting time, custody, divorce, dissolution of civil union or domestic partnership, alimony, child support 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.

Fleeing Police, Without More, Does Not Give Probable Cause to Search in NJ

Police saw defendant's car in a driveway with another individual, a known drug offender, leaning in the window. When the defendant saw the police he drove out of the driveway in spite of officer's commands to stop. The officer eventually caught up with the defendant's vehicle, ordered defendant out of the car and discovered heroin in plain view. Defendant was charged with possession of heroin with intent to distribute. The Court below held defendant's presence in the driveway with the known drug offender did not provide reasonable suspicion giving rise to authority for temporary detention but, defendant's failure to obey the order to stop gave reasonable suspicion necessary to justify the stop of his vehicle. Defendant ultimately pled guilty to possession of heroin with intent to distribute in a school zone and possession of marijuana with intent to distribute but appealed the denial of his motion to suppress evidence based on the theory that the officer's order to stop was a seizure in violation of his constitutional rights. But for the initial intrusion of the police without reasonable suspicion, the later events leading to the discovery of the controlled dangerous substances (CDS) would not have occurred therefore the CDS, when discovered, were "fruit of the poisonous tree" and must be suppressed under Wong Sun v. United States, 371 U.S. 471 (1963). The State may circumvent the exclusionary rule if the evidence is so attenuated from the unlawful police actions that it serves to "dissipate the taint" from the unlawful actions. State v. Badessa, 185 N.J. 303, 311 (2005) The evidence against defendant was obtained as a direct result of the unconstitutional police action and no attenuation occurred therefore the N.J. Supreme Court held the heroin must be suppressed. If you are facing criminal charges and feel your rights were violated by an unconstitutional search, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on search and seizure, drug possession or distribution charges and 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.

Custody Change Children Prefer Different Parents

A father appealed the denial of his Motion for a change in custody of the parties' daughter. The father sought to change the primary residence of the parties' 15 year old daughter from the mother's residence to his own. The parties have 2 children, one boy and one girl, together and the father enjoyed liberal visitation as long as he resided within 20 miles of the mother, who was named parent of primary residence in the Property Settlement Agreement. The father moved outside the 20 mile radius and the mother's motion to reduce the father's parenting time was granted. The daughter specifically expressed her interest in residing with her father rather than her mother. The child advised that her interest in the custody change was based on concerns about her mother's parenting methods. Additionally, there was a parenting coordinator assigned to the matter which the judge below dismissed from the case. The judge below dismissed the motion as he did not believe the parties' children should live in separate residences. The judge expressed no findings that the children would be harmed by Amy's request for the change in custody, that changing schools would be to her detriment or that Amy was under undue influence by her father. Also, the judge held no plenary hearing prior to denial of the motion. The NJ Appeallate Court held that the judge erred in the failure to hold a plenary hearing as the facts clearly gave rise to a prima facie case of changed circumstances. The matter was remanded for a hearing in the event there remained a contest as the child was 16 years old by the time the appeal was decided. If you are seeking or fighting a change in custody, 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.

Waiver of Juveniles to Adult Court is Now Subject to Higher Level of Scrutiny in NJ

Prosecutors showing probable cause that a juvenile committed certain enumerated violent and drug related offenses may waive juvenile offenders over 16 from the jurisdiction of the family court to adult criminal court. Previously the standard of review was "patent and gross abuse of discretion" when the prosecutor's decision to waive the juvenile into adult criminal court was challenged. On September 12, 2012, the New Jersey Supreme Court decided, in State in the Interest of V.A., changed the standard of review to the much lower standard of "abuse of discretion." The justices opinion indicated the lower standard was preferable due to the substantially enhanced punishment faced by juveniles tried in adult criminal court. In this case, the juveniles were charged with conduct amounting to first-degree robbery, second-degree aggravated assault and conspiracy. The justices, in consideration of the serious penalties for the offenses, offered guidelines governing the waiver of juveniles into adult criminal court including the nature of the offense, the need for deterrence, the possible sentence the juvenile will receive at trial and the juvenile's prior record. 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.

Unfounded Abuse and Neglect Ruling Reversed by NJ Appellate Court

A mother was charged with abuse and neglect after drinking beer and taking Xanax after her children were put to bed for the night. The woman's husband was not the biological father but was present at all times and was able to provide care to the children if needed. There was no showing that the children needed the care of the mother after they were put to bed. The children were regularly left in the care of the woman's husband and there was no threat to their safety when they were in his care. The New Jersey Appellate Court reversed the decision finding the record below inadequate to establish that abuse and neglect occurred or that the children were in danger. If you are facing charges of abuse and neglect or your children have been removed by D.Y.F.S., you should consult an experienced family law attorney immediately in order to protect your rights. For more information on removal, abuse and neglect, D.Y.F.S., custody, divorce, dissolution of civil union or domestic partnership, alimony, child support 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.

Reckless Driving Is Reason for Revoking License in NJ

Municipal court judges are authorized, under N.J.S.A. 39:4-96, the reckless driving statute, to “revoke the license of any person to drive a motor vehicle, when such person shall have been guilty of such willful violation of any of the provisions of the motor vehicle code as shall, in the discretion of the judge, justify such revocation.” Although the argument has been made that this leaves municipal court judges with discretion to arbitrarily revoke driving privileges. The New Jersey Appellate court has set forth guidelines for revocation which are used to defend the decisions of municipal court judges regarding license revocation. The municipal judge should consider “the nature and circumstances of the defendant’s conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant’s driving record, including the defendant’s driving record, including the defendant’s age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant’s driving record indicates that there is a substantial risk that he or she will commit another violation; whether the defendant’s conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependents; and the need for personal deterrence. Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. Reckless driving charges in New Jersey should not be taken lightly.If you face reckless driving, DUI/DWI, CDS in a motor vehicle or other serious offenses in municipal court, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on municipal court matters or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Preglimony- Will NJ See a New Support Obligation? And a Man's Right to Choose?

Based upon older laws, men's support obligations presently begin at birth. Through DNA testing, parties can now know parentage long before birth. As a result, there is now the opportunity for an unmarried mother to receive contribution for costs associated with unborn children including medical bills, maternity clothes lost income and other expenses. This obligation may exist even if the mother miscarries or the pregnancy is terminated. In fact, the father could also be looked to for abortion costs. This concept is ripe for litigation of issues from the tax treatment of preglimony, as deductible to the father and income to the mother like alimony or not tax-affected like child support, to the much more significant issue of whether the sole right to choose whether to continue or terminate a pregnancy would then rest with the woman or both parties. Preglimony could lead men who would otherwise pressure women into unprotected sex to cease the practice, preventing unwanted pregnancy and disease. Alternatively, unwed women who become pregnant are often pressured to abort the pregnancy and imposing preglimony could certainly increase the pressure and in some cases abuse. Although preglimony is not presently charged to men or available to women, expect to see significant legal activity regarding this issue in the future. 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 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.