Drivers Can Be Charged With Multiple Refusals as a Result of a Single Event in NJ

In State v. Nunnally, 420 N.J. Super. 58 (App. Div 2011), a defendant in was charged with refusal to submit to a breath test under the DUI statute but not under the CDL statute. When the officers were alter unable to prove that the driver was under the influence, they attempted to charge the defendant with refusal to submit to a breath test under the CDL statute. The Bergen County court addressed the matter and concluded that CDL refusal is not a lesser included offense of a general DUI refusal because each requires proof of a different set of facts and the Appellate Division affirmed. The CDL refusal statute requires proof the arresting officer had probable cause to believe the person had been operating or was in actual physical control of a commercial motor vehicle on the public highways or quasi-public area with a blood alcohol concentration (BAC) of .04% or greater. This differs from the general DUI statute which requires proof the driver is under the influence of intoxicants rather than simply having a BAC of .04% or greater. As a result of the officers failure to charge him with CDL refusal within 90 days of the incident Nunnally was only held to account for the general DUI charge. Although Nunnally escaped prosecution under the CDL refusal statute, it is an uncommon event that officers would not bring complaints for all significant charges against a driver, including the often minor issues which gave rise to probable cause in the matter. Penalties for DWI are severe, including jail, loss of license, significant fines, court ordered counseling for drugs and alcohol as well as installation of ignition interlock devices. Interlock devices are expensive to install and require payment of monthly fees, as well as visits to certified inspectors to insure proper operation of the device during the install period. If you are charged with a DUI, you should seek experienced defense counsel immediately to protect your rights. For more information on DUI, driving while intoxicated, refusal to submit to an Alcotest (formerly Breathylizer), CDL refusal, CDS in a motor vehicle or other serious driving related charges 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.

Failure to Give Appropriate Breath Test Refusal Warning Can Result In Acquittal in NJ

Refusal to give a breath sample in a DUI matter carries substantial penalties including mandatory minimum 7 month loss of driving privileges and fines up to $500 for a first offense to a minimum 10 year loss of license to $1,000 fine for a third or subsequent offense. Additionally, if you refuse to submit a breath sample, you may still be convicted of DWI based on the officer's observations while you perform field sobriety tests. In the event you elect not to submit a breath sample into the Alcotest machine and are still charged and convicted with DWI, you will face a loss of license for each offense. Due to the severity of the penalties for refusal being akin to those for the underlying driving under the influence charge, the legislature has structured the warnings given in the event of a refusal to be of the same stricture as those issued for driving while intoxicated. In the recent case of State v. O'Driscoll, Harding Municipal Court Judge Gary Troxell found O'Driscoll guilty of refusal, DWI and possession of an open container of alcohol and Morris County Superior Court Judge Ironson affirmed the conviction on appeal. The Appellate Division overturned the conviction on the grounds that failure of arresting officers to read the current refusal warnings did not satisfy the intent of the legislature in the preparation and requirement of the specific statement regarding the consequences of refusal to submit to breath tests. DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges, or refusal to submit to a breath test, 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 refusal to submit to the Alcotest or DUI contact an attorney immediately to protect your rights. For more information on Driving While Intoxicated 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.