Limits To Scope of Restraining Orders in NJ

In State v. S.K., A-1488-10, the defendant was convicted for violating a restraining order barring him from being anywhere near his ex-wife. Defendant was charged with violating the restraining order when his ex-wife reported to the police that he was at his son's soccer game while she was seated in the bleachers at the game.
Defendant was arrested and spent several hours in custody. He later pled guilty to a contempt charge in a deal where he received no additional jail time. He was also ordered to pay a $125 penalty.
The Appellate Court ruled that such an overbroad order puts otherwise innocent individuals at risk of being charged with a crime for undertaking what is daily routine for others. A defendant subject to such an order would be unable to appear in public places for fear he would come into contact with the victim. The Appellate Court vacated the conviction and required that the Family Part consider amending the restraining order to delete the provision regarding defendant's presence anywhere near the wife to something less overbroad.
Domestic violence and restraining orders are taken very seriously by members of the New Jersey criminal justice system and result in a substantial deprivation of your civil liberties. A domestic violence conviction or final restraining order on your record can result in loss of opportunities to enter your residence, spend time with your children and deprive you of your right to own a gun. If you are facing charges of domestic violence of violating a restraining order you consult an attorney immediately to protect your rights. An experienced lawyer will be aware of defenses and options such as diversionary programs which can help you avoid a restraining order.
For more information on domestic violence charges or restraining orders in New Jersey visit HeatherDarlingLawyer.com.

Same-Sex Marriage Legislation in NJ

Four days after Governor Chris Christie conditionally vetoed legislation that would have allowed gay and lesbian couples to marry in New Jersey, Superior Court Judge Linda Feinberg reversed her November 2011 ruling and reinstated a count in a lawsuit filed by seven same-sex couples. The Judge ruled the same-sex couples could argue that the state’s 2006 law allowing civil unions violates the U.S. Constitution. The claim is that denial of their right to marry results in denial of equal protection under the NJ Constitution as well as equal protection and due process under the US Constitution. These seven couples will have the opportunity to argue on behalf of marriage equality in New Jersey rather than alternative programs such as Civil Unions which offer limited rights and are not recognized outside the State of New Jersey. Governor Christie's proposal involved an ombudsman appointed to increase awareness of the rights of same-sex couples under the Civil Union law. The Governor's rationale for the appointment is his belief that rights are available to same-sex couples under the Civil Union law but same-sex couples may not be aware of the full rights offered.
Proponents of gay rights contend that civil unions create a separate and unequal class, subject to further discrimination. Governor Christie prefers a popular vote to allow the citizens of New Jersey to decide whether marriage shall continue, in NJ, to be defined as being between a man and a woman. Thus far 7 states officially recognize same-sex marriage.
For more information on protecting your rights as a member of a same-sex couple in New Jersey visit HeatherDarlingLawyer.com.

Anonymous Domestic Violence Tips Lead to Warrantless Searches in NJ

The Court is presently considering whether warrantless searches by police in New Jersey are permissible when responding to an anonymous tip. Frequently in family disputes it is not the parties making a 9-1-1 report to which police respond. Once police receive a domestic violence call, they are required to investigate and ensure the welfare of the any possible victims or family members.
In a case where the police received an anonymous domestic violence report about a woman being beaten and the alleged victim met police at the door in a clearly unharmed state the police sought permission to enter the residence. The victim stated there was no need as everything was fine.
In spite of her refusal to permit entry the police entered the residence, without a warrant, claiming a need under the community-caretaker doctrine. Upon entering the residence the police saw the alleged abuser unarmed, seated in a chair watching television. The police proceeded to search the apartment and did locate a gun hidden beneath a mattress near the alleged abuser.
Following indictment for a weapons offense, the Superior Court Judge granted a Motion to suppress the gun and the Appellate Division confirmed. The prosecution presented arguments to the Court. One argument was that the officers' continued inquiry was appropriate because domestic violence victims often refuse to tell the police the truth about what happened out of fear or desire to protect the abuser. Another argument by the prosecution was that there was a child in the home and the child needed to be protected even if the alleged victim wished to avoid police involvement. Also, the prosecution argued that the search for the gun was justified under the safety exception as it was within the reach of the alleged abuser and could have been used against them.
The findings of the Court on this issue will bear influence on the results of domestic violence calls by neighbors or others for years to come. If the ruling favors the prosecution, it is possible that the home of a couple arguing, but not at all near violence, will be entered and searched by police officers called in by neighbors who thought they were doing a good deed. Once inside the police will be able to search at will for evidence of domestic violence which will bring them to the remotest corners of the interior looking for broken items, holes in walls, torn clothing or other signs of violence. Anything they locate along the way may then become evidence in a criminal trial against an individual who was never involved in the alleged underlying crime that brought police to the residence to search.
If you have been charged with a crime as a result of an illegal or warrantless search consult an attorney to find out about suppressing any evidence the prosecution has against you and obtaining a dismissal of the State's case against you to protect your rights and your record. For more information on criminal charges and warrantless searches in New Jersey visit HeatherDarlingLawyer.com.

Warrant Requirement in NJ Auto Searches

For the past couple of years, New Jersey has required a threshold of probable cause and exigent circumstances to justify warrantless searches of motor vehicles following routine traffic stops. This requires the need for evidence preservation or officer safety in order to search a vehicle during a routine traffic stop. Now prosecutors are seeking a reversal of the need for higher thresholds and a movement toward a warrantless automobile exception. Previously the automobile exception served to reduce the level of privacy an individual could expect in an automobile and gave the police broader search powers during routine motor vehicle stops.
The New Jersey Court found that the civil liberties of NJ citizens and those commuting within its boarders in automobiles outweighed the need for police to access the contents of the vehicles without a clear and justified need. A reversal at this time would be a deprivation of the liberty of NJ drivers and passengers by revocation of their right to a reasonable expectation of privacy within their vehicles.
The Court expressed concern for the lengthy detention of motorists in the event a warrant is sought but also found that the opportunity to permit a warrantless search results in an undue coercive pressure on the motorist. The Court stated the officers' requirement to justify their decisions to search at later hearings as a protection for motorists but this offers little protection once the police have the drugs in their possession .
When it comes to warrantless automobile searches, the pendulum has long swung between the civil liberties of motorists and the need for the police to protect the public. If you have been convicted of possession, or any other crime, based on evidence obtained during a warrantless automobile search contact an attorney immediately to find out if your rights were violated and attempt to have this evidence suppressed.
For more information on charges stemming from motor vehicle searches in NJ visit HeatherDarlingLawyer.com.

Expungement of Criminal Records in NJ

New Jersey permits expungement of criminal records. An expungement is the removal and isolation of all records on file within any court, detention center, correctional facility, law enforcement, criminal justice or juvenile justice agency concerning a person's arrest, detention, trial or disposition of an offense within the criminal or juvenile justice system.

A criminal record can haunt you forever. An expungement confers the benefits of a clean criminal record including the ability to get or keep certain jobs, professional licensing opportunities, the ability to obtain firearms and even acceptance into certain schools.

In New Jersey, expungements are only available for certain offenses and there are minimum waiting periods of 5 and 10 years, depending on the offense. Recently the Court held, in The Matter of the Application for Expungement of Criminal Records of Lobasso, that, in spite of the recent amendment to the expungement statute, N.J.S.A. 2C:52-2a, reducing the waiting period for an expungement from 10 years to 5 under certain circumstances, such relief is considered extraordinary and not routine. Following 10 years there continues to be a presumption that an expungement will be routinely granted barring a societal interest in maintaining the availability of the records. When an application is made for an expungement of more serious offenses in less than 10 years, more than the offense-free passage of time is required. The requirement is a showing that there is a public interest in the expungement, after consideration of the underlying offense and the applicants character and conduct since the conviction.

If you or your child have been haunted by an error in judgment made long ago, expungement is something you should consider. When properly handled, it can be a simple and freeing process but you should always have the benefit of an attorney when seeking an expungement. For more information on expungements in New Jersey visit HeatherDarlingLawyer.com.

Pets and Domestic Violence in NJ

Pets have long been neglected members of society. Pet owners tend to love their pets like children but non-pet owners often see pets as disposable items to be discarded at will. Long ago the Courts addressed the issue of leaving money to pets in a will and more recently the Courts have been addressing the issue of pets in matrimonial actions. Often those who have pets do not wish to give them up in a divorce situation. Now the courts will treat the pets as children, to some degree, in the event that the parties wish to do so and will make decisions as to custody and allocation of expenses for veterinary bills and the like.

Most recently pets have been afforded new protections in NJ by virtue of a bill addressing domestic violence issues. Now, in the event someone is convicted of domestic violence, they are prohibited from having contact with the victim's pets or making decisions as to what happens to the pets. If you are involved in a domestic violence dispute in NJ you should consult with an attorney to protect yourself and your pets. For more information on domestic violence in New Jersey visit HeatherDarlingLawyer.com.

Fewer Challenges Available to NJ DUI/DWI

The NJ Supreme Court has taken another bite out of possible challenges to Alcotest results. Recently the Alcotest machine, now used in DUI testing of breath samples, was challenged on the basis of police officers administering consecutive tests less than 2 minutes apart. The accused argued that the Court's findings in State v Chun, 194 N.J. 54 (2008), that there was a 2 minute waiting period before officers could administer consecutive breath tests, was due to the fact that the prior breath sample may contaminate the next sample . The Court, in State v. Mukherjee, A-3031-10, held that a 2 minute rule was never established by the Court. NJ Supreme Court Judges held the Alocotest safeguards against contamination because it automatically locks until it recalibrates for the next breath sample in order to prevent operator error.
The Morris County Chief's Association, Morristown, Teaneck, Newark, Orange, South Orange, Union City, Elmwood Park, Irvington, East Orange, Hopatcong, Parsippany have all set up sobriety checkpoints or publicized programs to crack down on DUI within the last few months. A DUI in Morris, Essex, Bergen, Passaic, Hudson, Sussex or Warren County has serious consequences including significant loss of license, fines and even jail. The primary proof in most DWIs today is the Alcotest result. There are still grounds on which these results may be challenged but they are limited and it typically requires an experienced attorney to successfully challenge them. For more information on DUIs in New Jersey, visit HeatherDarlingLawyer.com.