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.

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.

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.

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.

State Must Prove Operation of Vehicle to Win DUI Case in NJ

In NJ, courts have the discretion to broadly construe "operation" of a motor vehicle to include intent to drive while intoxicated. Intent to drive while under the influence has been proven by as little as sitting in a vehicle with the keys in your possession. There is not a true "motion" requirement for the vehicle and the arresting officer need not witness operation. However, no matter how amorphous the definition of "operation" may be, the fact remains that the prosecution bears the burden of proving the defendant was impaired, had the means to operate a vehicle in very close proximity and the intent to operate said vehicle while still under the influence of drugs or alcohol. A DWI in New Jersey carries serious consequences. If you are charged with driving under the influence of alcohol, illegal drugs such as heroin, cocaine, marijuana or ecstasy or prescription drugs such as oxycontin, percocet, roxycottin, valium or other drugs which may hinder your ability to drive, even if you have a prescription for them, you should consult an experienced DUI attorney immediately in order to ensure your rights are protected. Before conceding guilt, your matter should be fully reviewed by an experienced attorney to prevent you from being convicted when the state does not have adequate evidence to prove it's case. 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 charged with a crime, you should consult an experienced DUI attorney immediately in order to protect your rights. For more information on driving while intoxicated, driving under the influence, controlled dangerous substances (CDS) in a motor vehicle or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

NJ Assembly Looks to Criminalize DUI With Young Passengers

Currently pending in the New Jersey Assembly is a which would result in criminal penalties for driving under the influence with a person under 17 in the vehicle. Driving under the influence includes liquor, heroin, cocaine, marijuana, oxycodone (oxycottin), percoset, Escasty, methamphetamines, morphiene, xanax, vicodin, percodon, fentanyl, adderall, nembutal, ritalin, dexedrine, valium, suboxone, diazepam, roxycontin, or any narcotic, hallucinogenic or other controlled dangerous substance. This means if you are taking your own prescription and a police officer finds your driving abilities to be hindered beyond an acceptable level by your prescription, you may be not only charged with a DUI but also face criminal penalties. If this legislation is passed, the DUI statute N.J.S.A. 39:4-50 would be modified to include a person guilty of DWI with a passenger 17 years of age or younger in the car is also guilty of a crime of the fourth degree if the violation does not result in bodily injury to the minor. If the minor suffers bodily injury as a result of the driving while under the influence offense, the driver will be guilty of a crime of the third degree. In addition to the above charges the driver will be required to attend an additional Intoxicated Driver Resource Center program concerning responsible operation of a motor vehicle while transporting a minor. 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 DUI charges, you should consult an experienced DUI attorney immediately in order to protect your rights. For more information on DUI, drug charges, other criminal law matters or traffic violations in New Jersey visit HeatherDarlingLawyer.com.