Pregnant Women Using Drugs Legally Can Be Charged With Child Abuse

The Division of Youth and Family Services (DYFS) is charging a New Jersey woman with child abuse for legally using methadone to assist with her drug recovery during her pregnancy. The defendant in New Jersey Division of Youth and Family Services v. Y.N. had a history of drug abuse following the death of her infant son in 2005. After learning she had become pregnant again, she sought addiction counseling from a Newark clinic. She began her methadone treatment in 2011, after notification by the clinic that the child would be born dependent on methadone. At the time of the child’s birth, the mother's methadone use was evident and DYFS charged the mother with child abuse and neglect. The defendant clearly did not perceive the consequence of losing her child would result from use of methadone administered legally by a clinic which faced no legal charges for the administration of methadone to the pregnant mother. The NJ Appellate Court chose to look past the mother's desire to seek treatment for herself and focused on the best interests of the child. The court's decision was that “harm to the child need not be intentional in order to substantiate a finding of abuse and neglect”. The mother made a conscious decision to use drugs and her desire to cease using upon learning of her pregnancy must be enough on its own as the use of methadone may cause harm to the child. If DYFS is involved in your relationship with your children, you should seek experienced legal counsel. For more information on protecting your rights if charged by DYFS, child support, child custody or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Drug Court Failure Can Lead to More Severe Sentence

Those facing drug charges or other charges with underlying addiction issues who have no history of violent crimes can avail themselves of drug court probation in lieu of prison. Many take this option in order to avoid prison but fail to realize it means they have to actually stay clean for the entire probationary term which is typically 5 years. Because drug court is an option as long as there is no violent criminal history, those facing extended terms for second degree charges such as possession with intent to distribute within 1000 feet of a school zone or 500 feet of a public park, public housing or other public place are still eligible for drug court. What those entering drug court need to know is that failing out of the program by violating the terms of drug court probation like failure to appear, using, not maintaining employment or not participating in programs required following a drug evaluation subjects them to re-sentencing on the original charges. When considering a plea including drug court probation, it is always critical for the defendant to closely review and consider any alternate sentence which the prosecutor includes in the event the defendant is not successful in drug court. Often, taking a plea including prison rather than drug court can result in completing a shorter term in prison that that which will be faced in the event the defendant fails the drug court program. If you are facing criminal charges and think you may be eligible for drug court probation you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession of CDS, theft, burglary, assault, domestic violence or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Can Distance From Public Facility Be Inferred In Criminal Matter?

In drug distribution cases, penalties increase substantially if the matter takes place within 1,000 feet of a school zone or within 500 feet of a public park, public housing, museum or other public place. In the case of State v. Stevens, the NJ Supreme Court heard oral argument as to whether the jury could infer that a defendant arrested with 54 baggies of heroin on his person when arrested at Martin Luther King Drive and Stegman Street in Jersey City had been within 500 feet of a public park when the actual distance measured from the park to the location of arrest was 520 feet. Hudson County Superior Court Judge Fred Theemling, Jr. denied defendant's motion for post-conviction relief based on failure of defendant's trial counsel to determine and present evidence of the actual distance. Judge Theemling denied the motion without conducting a hearing based on his assessment that the jury could have inferred the defendant had been within 500 feet of the park prior to the sale of the controlled dangerous substance (CDS) based on other evidence offered at the trial. The NJ Appellate Division affirmed with Judges Christine Miniman and Jack Sabatino deciding proof of actual distance from the park was not required and circumstantial inferences by jurors are permitted. The day after the NJ Supreme Court heard oral argument on the case, it was dismissed as being improvidently granted. This is unlikely the last this issue will be heard by the courts. During oral argument, the notion was raised that similar hearings are being denied routinely and defendants are being deprived of their rights. State v. Lewis, 866 A.2d 643 (2005), is the precedential decision on the matter in NJ. In Lewis, the court considered whether, although the defendant accepted money within 500 feet of a park but the cocaine was in another location more than 500 feet from the park, there was possession within the park for the purpose of increasing the level of offense charged. The N.J. Appellate Division found that defendant exercised control over the drugs at all times while he was within 500 feet of the park and constructive possession within the park existed for purposes of increasing the offense charged from third degree to second degree possession with intent to distribute. It is always the prosecution's burden to prove the elements of a crime charged. If you are charged with drug distribution or possession with intent to distribute you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession of CDS, theft, burglary, assault, domestic violence or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

No Right To Detain Suspects Away From Premises While Executing Warrant

In the execution of a warrant, police knowingly allowed suspects to leave the apartment and travel approximately one mile prior to stopping the vehicle and returning the occupants to the apartment where the police search team was already at work and found a gun and drugs. The police then arrested the men and discovered that a key located during a patdown search at the motor vehicle stop unlocked the apartment door. Defendant moved to suppress statements to the police made during the motor vehicle stop and the apartment key itself. The district court denied the motion indicating the motor vehicle stop and return to the apartment was justified as a detention incident to the execution of a search warrant under Michigan v. Summers. The United States Supreme Court reviewed the matter of Bailey v. United States and read Summers as allowing detention of the occupants of the premises during a valid search without particularized suspicion as to the involvement of the occupant in potential criminal activity. The court found three interests of law enforcement justifying the detention including 1) officer safety, 2) preventing interference with the search or destruction of evidence and 3) preventing those who may be guilty from fleeing. Upon considering the distance of the defendants from the apartment the US Supreme Court held that the arrest approximately a mile away "involved an additional level of intrusiveness" detention beyond the immediate vicinity of the premises is invalid. Motions to suppress evidence are difficult but possible if the appropriate facts exist and may result in the dismissal of the prosecution's case against you. If you are charged with a crime in New Jersey, you should immediately hire an experienced criminal attorney who will review the facts of the case and determine how to best help you to defeat the charges against you. For more information on illegal searches, motions to suppress or other criminal matters including drug (CDS), gun, assault, domestic violence, burglary, theft, shoplifting and DUI/DWI in NJ 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.

When a drug dog alerted during a sniff test the officers found drugs the dog was not trained to detect the defendant sought to challenge the dog’s record in the field for false alerts. The defendant in Florida v. Harris was stopped and on 2 separate occasions and his vehicle was searched on both occasions as a result of a sniff test by the same dog. The initial search revealed ingredients used in manufacturing methamphetamines. The second search occurred while defendant was out on bail for the arrest during the first stop. The second search revealed no drugs. The United States Supreme Court heard the case and held that a defendant is entitled to challenge the evidence relating to a drug dog’s reliability. The defendant may challenge the dog’s reliability with his or her own witness, by cross-examination of testifying handler or both. Challenges may go to the dog’s training or actual field results. If you have been charged with a drug related crime in New Jersey, you should obtain experienced defense counsel immediately to insure your rights are protected any search and seizure was proper. Experienced counsel can challenged the State’s probable cause for the stop as well as any search which resulted in the prosecution’s finding of evidence. For more information on drug charges, controlled dangerous substances (CDS) in a motor vehicle or criminal law or 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.

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.

"Inevitable Discovery", "Independent Source" Doctrines and Suppression in NJ

In the recently decided case of State v. Pheasant, police received a tip from an informant that defendant was selling marijuana but during a controlled buy they arranged, police did not find marijuana on defendant's person. Police then questioned defendant regarding where the marijuana was and he stated it was in his truck and they could "go get it." Defendant was charged with possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, possession of intent to distribute CDS within 1,000 of a school and possession of CDS with intent to distribute within 500 feet of a public housing facility, park or public building. Defendant sought to suppress the marijuana due to a warrantless search. The State argued defendant voluntarily disclosed the location of the CDS and even if the defendant's privacy rights were violated, a search warrant would have issued and the CDS would have been rightfully seized under the "inevitable discovery doctrine." The judge decided the State met the elements of inevitable discovery but failed to correctly interpret the doctrine. Additionally, the trial judge erred in incorporating elements of the "independent source doctrine" into the analysis when the State made no claim of independent source. The NJ Appellate Division held that the officer's inquiry regarding the CDS triggered defendant's right to privacy and he only disclosed the location of the marijuana when asked. Inevitable discovery requires that (1) proper, normal and specific investigatory procedures would have been followed in the investigation; (2) given the facts, the investigation would have resulted in discovery of the evidence; and (3) the discovery of evidence would have occurred independently of the discovery by unlawful means. State v. Sugar, 100 N.J. 214 (1985). In contrast, the independent source doctrine requires (1) the State had probable cause to search even without the illegally obtained information; (2) the state would have sought a warrant even without the illegally obtained knowledge; and (3) and illegality was a mistake and not "flagrant police misconduct." Because the State addressed only the inevitable discovery doctrine at trial the matter is remanded for reconsideration under the proper elements of that doctrine and the State is precluded from raising the independent source doctrine after the fact. A judge must submit very specific reasons for finding you guilty in a criminal matter. If you are facing criminal charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on drug charges, CDS, distribution, drug possession, CDS in a motor vehicle 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.

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.

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.

Lack of Consent to Search Permits Withdrawal of Guilty Plea in NJ

Police received a tip from an informant about two black males selling drugs out of a car belonging to defendant. When police located the vehicle at the location provided, they notified defendant of their belief there were drugs in the trunk and requested permission to search. Upon denial of consent to search, officers proceeded to open the trunk and located the drugs the informant stated they would find. After entering a plea of guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, the defendant moved to withdraw his guilty plea. In spite of the fact defendant may have been notified of his right to file a suppression motion, and that his right would be waived by entering a plea of guilty, defendant chose to plead guilty. Defendant later filed a motion to withdraw his guilty plea. After the Court below denied the defendant the relief sought, the New Jersey Appellate Court found that the Motion to withdraw the plea should have been granted. Defendant's appeal was granted on his contention that he did not consent to the search of the trunk of his car. Defendant claimed that he expressly denied consent to open the trunk of the car but the police did not honor his rights. Because the search may have violated defendant's rights, granting defendant's motion to withdraw the guilty plea was appropriate. 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 as a result of an illegal search, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information regarding illegal search and seizure, 4th Amendment rights, drug charges or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.