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.

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.

Early Expungement Factors in NJ

Expungement is a means of sealing criminal records for those who made an error in judgment. In order to qualify for an expungement, there is a waiting period, at least 5 years, which must pass without the commission of further crimes. New Jersey has relaxed the timeframe for expungement in certain circumstances. In considering early expungement, the court has set forth certain factors. The nature of the offense must be balanced against the petitioner’s overall character. At all times, it is the petitioner’s burden to prove they are deserving of an early expungement. The State is considered to have met it’s burden of proof at the petitioner’s trial. In the case of a petitioner previously convicted of dealing drugs, the New Jersey Supreme Court held that a lower court erred in considering factors the Legislature did not include in the carefully drafted statute. Although the nature of the drugs sold could not be considered, the number of times drugs were sold, whether they were sold to minors and weather there were weapons involved could be considered. 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 have a criminal record that is hindering your ability to obtain employment, the education you want or otherwise negatively impacting your life, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on expungements or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Criminal Charges Can Affect Your Immigration Status in NJ

Failure to understand immigration consequences is not always the reason for pleading guilty to criminal charges in New Jersey. The case of State v. Nunez-Valdez (200 N.J. 129 (2009)), resulted in substantial changes in the way criminal pleas are handled where there may be negative immigration consequences. In a case where defendant, in the country illegally at the time, was charged with third degree burglary, third degree resisting arrest and second degree attempted aggravated arson to and entered a plea to third degree burglary and fourth degree defiant trespass in the Hudson County Superior Court. The plea agreement permitted the State to argue that the court sentence defendant to a term of up to three years but defendant's lack of criminal record made it likely defendant's argument for a probationary sentence involving participation in an alcohol abuse program would prevail. At sentencing, defendant stated he was aware intoxication might be a defense to some of the charges included yet waived the right to assert that defense. Defendant later made application for his green card then was arrested by Immigration and Customs Enforcement (ICE) and detained at the Essex County Correctional Facility as a result of the Hudson County conviction. At that time, defendant began to assert his innocence and stated he would never have entered a guilty plea had he known the immigration consequences. The New Jersey Appellate court found defendant knowingly and voluntarily entered the guilty plea in order to receive a probationary sentence rather than incarceration. They Appellate Court also decided that any immigration consequences to defendant could not be linked directly to the guilty plea due to the passing of years between the plea and the detention. Criminal charges of any kind, including shoplifting, should not be taken lightly if you are not a U.S. citizen. If you are not a U.S. citizen and you have been charged with a crime you should seek an experienced criminal defense attorney immediately to protect your rights and immigration status. For more information on criminal or 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.

DWI Acquittal Results in Dismissal of Vehicular Manslaughter Case In NJ

Defendant was charged with DWI, vehicular manslaughter, possession of marijuana, paraphernalia, reckless driving and CDS in a motor vehicle. Defendant was acquitted of the DWI but was found guilty of all charges. Defendant appealed the vehicular manslaughter charge because the Model Jury Charge did not instruct that the DWI acquittal needed to be taken into account. The New Jersey Appellate Court held that the erroneous instructions relative to the DWI constituted reversible error. The Appellate Court also found that instructing the jury on the concept of "recklessness" without comparison to the concept of "negligence" was erroneous. The conviction for vehicular manslaughter was vacated. 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.

Must You Provide A Urine Sample in A NJ DUI Arrest?

On July 2, 2012 the New Jersey Appellate Court heard the case of State v. Verpent (A-3807-10T4). Verpent was found guilty of DUI and challenged the failure of Bergen County Superior Court Judge Jerejian to suppress the lab results from his urine sample. The Appellate Division upheld prior cases requiring the submission of urine and its use in proving Driving Under the Influence Cases. Once an officer's observations lead to a conclusion that an individual is under the influence of intoxicants, the officer may request the performance of field sobriety testing in the event that the officer believes the individual may safely perform the tests. If the field sobriety tests provide further evidence of intoxication, the individual will be asked to provide a breath sample into an Alcotest device. If the individual's blood alcohol level (BAC) is under the legal limit or non-existent and the officer believes drugs may be causing the inability to perform tests, a Drug Recognition Expert (DRE) will then perform further testing along with obtaining urine and sometimes blood samples from the accused. N.J.S. 39:4-50.2(a) requires all drivers to consent to submission of urine and blood samples upon an officer's request. Although defendant challenged the taking of his urine without a warrant, the Court held that the officer's observations gave rise to probable cause to arrest and exigent circumstances justifying taking of a urine sample without a warrant under the theory that delay could result in "destruction of evidence." Although urine screens are not always accurate and the results are subject to challenge, the NJ courts have long required defendants in driving while intoxicated matters to provide urine specimens and there is "no federal constitutional right to prevent being required to giving a urine sample". State v. Malik (534 A.2d 27 (App. Div. 1987) DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges you should seek an experienced attorney to assist you in your defense. Selecting an attorney who knows your rights and is able to avoid a conviction based on mistakes by officers in their attempt to prove your guilt is the difference between keeping or losing your license, as well as a host of other problems that come with a refusal conviction in NJ. If you are charged with DUI contact an attorney immediately to protect your rights. For more information on Driving Under the Influence 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.

Warrantless Search Without Danger Exceeds Community Caretaking Role of Police in NJ

Following receipt of an anonymous call about domestic violence, the police appeared at a New Jersey residence to determine whether there was danger to anyone. Upon arrival, police were met at the entrance to the apartments by the alleged victim. The alleged victim advised the police there were no problems at the residence and she was not in danger. The police found the circumstances to be curious, especially the fact that the alleged victim was at the door waiting for them, rather than inside with the other occupants. In order to determine whether the alleged victim was truly safe, the police insisted upon gaining entry into the apartment and were admitted into defendant's apartment by the parties' 11 year old child. Upon entry into the apartment, the police saw no signs of danger or unrest and no weapons were observed in plain view. At that time, rather than accepting that there was no actual danger present, the police violated defendant's rights by undertaking a warrantless search of the premises. The illegal search revealed a handgun under a pillow near the defendant and he was charged with a weapons offense. Only in the case of an emergency requiring immediate action by the police is a warrantless search permissible. The New Jersey Supreme Court held that this was an illegal search in violation of defendant's rights to enjoy the protections of the constitution relating to a person's home as offering a reasonable expectation of privacy from intrusion. 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 that evidence against you was illegally obtained by police, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on 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.

No Loss of NJ Drivers License for Out of State Offenses

In the event you are convicted of an out of state driving offense which subjects you to a suspended license in the state levying the charges against you, your New Jersey drivers license becomes subject to suspension. However, there is an important caveat: the offense for which you are found guilty must be one that would subject you to suspension if it occurred in NJ. In NJ, certain convictions such as controlled dangerous substances in a motor vehicle result in automatic suspension of driving privileges. States differ as to which convictions result in suspension of driving privileges within the state, therefore, convictions leading to suspension in one state may not require automatic suspension in other states. In the event your driving privileges are suspended in another state, New Jersey will receive a notice of suspension from that state. Upon receipt of notice of suspension in another state, NJ Motor Vehicle Commission (NJMVC) will mail, to the address appearing on your NJ drivers license, a notice of proposed suspension. This notice is prepared administratively by the NJMVC . What this means to you is that, although you receive a notice of suspension from the NJ Motor Vehicle Commission due to a suspension of your privileges in another state, the underlying conviction in the other state may not meet the statutory requirements for suspension of your driving privileges in NJ. If you receive a notice of suspension of your New Jersey driving privileges from the state of NJ as a result of an out of state suspension, you should contact an experienced municipal court defense attorney to determine whether the underlying charges give rise to loss of driving privileges in NJ. If the underlying charges do not require suspension of your driving privileges in NJ, you may continue to drive in NJ. More importantly, if you were charged with driving while suspended in NJ as a result of this situation, the NJ charges will be dismissed once you have resolved the original suspension issue. 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 suspension of your NJ driving privileges, you should consult an experienced traffic law attorney immediately in order to preserve your ability to commute to work, transport your children, attend medical appointments and the like. For more information on motor vehicle, municipal court and other criminal law matters, in New Jersey visit HeatherDarlingLawyer.com.

Traffic Law Violations Expanded To Criminal Liability in NJ

The NJ Appellate Court upheld the decision of Sussex County Superior Court Judge N. Peter Conforti in finding violating seatbelt laws can result in criminal liability . The application of a statute designed to protect the general public safety has been used only sparingly by prosecutors since it was enacted in 1997. In the matter involved, State v. Lenihan, an 18 year old driver was found to be operating a vehicle after "huffing"- inhaling propellant as from an aerosol can with the purpose of becoming intoxicated. The driver lost control if the vehicle and the 16 year old passenger was killed in the ensuing crash. the resultant police investigation revealed the passenger was not wearing a seatbelt. When an individual acts recklessly and injures another while violating a law intended to protect the public safety they are guilty of a crime. The act of driving under the influence likely caused the accident and the failure to wear a seatbelt was a compounding factor in the death of the passenger. Under circumstances such as these, public policy favors a broad reading of legislative intent to mete out punishment and deter others from committing similar acts. Although normally viewed as a simple traffic offense, failure to wear a seatbelt was read by the Court to permit additional charges to be levied against the defendant. 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 accused of criminal offense, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on traffic offenses, municipal court matters or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Conditional Dismissal May Be Expanding in a NJ Municipal Court By You

Conditional Discharge and Pre-Trial Intervention (PTI) permit first time offenders, in Municipal and Superior Court respectively, to undergo a period of probation rather than face the typical penalties for the crime committed. In the event they successfully complete the probationary period, the crime will not appear as part of their record. If they fail to complete probation successfully the underlying charges are simply reinstated and they will be sentenced to the appropriate penalties. Municipal Courts allow Conditional Discharge for certain first event drug related offenses and Superior Courts allow Pre-Trial Intervention for a variety of offenses for first time offenders. The unfair result for certain offenders in municipal court is they are subject to harsher penalties than those committing more serious offenses. The Conditional Dismissal program under consideration would permit defendants charged with disorderly or petty disorderly persons offenses the opportunity to avoid a criminal record. Conditional Discharge and Pre-Trial Intervention are good choices for some offenders but not for all. Your best choice is always to seek experienced legal counsel if facing criminal charges in Superior or Municipal Court. For more information on criminal law in New Jersey visit HeatherDarlingLawyer.com

Mandatory Jail time for Driving While Suspended in NJ

Driving while suspended in NJ carries substantial penalties. First and second time offenders face fines and further suspension of driving privileges. Those convicted of third or subsequent offenses face fines, further suspension and mandatory imprisonment in the county jail for 10 days. In the past, municipal court judges could take all factors into account at sentencing, including your personal circumstances such as job or family responsibilities, illness and other significant factors and permit alternatives to jail. Formerly the Sheriff's Labor Assistance Program (S.L.A.P.) was used by some municipal court judges as a means to permit certain individuals to avoid jail based on their specific circumstances. A New Jersey municipal court judge decided, in State v. Ayton, on September 13, 2011, that S.L.A.P. is not available to third or subsequent offenders. Although this is not binding on other Courts in New Jersey, it represents a tightening of traffic laws in NJ. The result of a Driving While Suspended charge can be severe. It becomes even more significant if you cannot afford to miss work, have family members who rely on you to meet their daily needs or other issues which make serving a jail sentence seem impossible. 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 a Driving While Suspended charge, you should consult an experienced municipal court attorney immediately in order to protect your rights. For more information on driving while suspended, traffic violations, other municipal court or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.