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.

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.

"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.

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.