Pending Change to NJ DUI Laws

Loss of license in NJ may bear less severe consequences if newly proposed legislation is passed. This legislation, currently pending in the New Jersey Senate, will supplement the NJ DUI/DWI Statute(N.J.S.A. 39:3-40) by incorporating an allowance for a "restricted use license." Often, for those convicted of driving under the influence, loss of license is the most severe penalty, far outweighing fines and other penalties. For most working adults, especially those supporting families, loss of license directly impacts one's ability to earn a living by limiting or eliminating their ability to get to their place of work. For drivers who rely on a CDL for a living, the hardship is even greater. The restricted use license was eliminated in NJ years ago in an effort to enhance the penalty for driving while intoxicated. In today's economy jobs are hard to get and keep. Also, those enrolled in an educational program whose matriculation depends upon attendance in a classroom or facility may also be eligible for a restricted license if this legislation is passed. A CDL driver needing to operate a vehicle as a condition of employment may also apply for this license. In order to obtain this provisional license, an individual would need to provide job or school information including hours and location. No public transportation to the applicant's job may exist within 1 mile of the applicant's residence. There must also be proof that no other reasonable means of transportation exists. The key factor will likely be a showing of financial hardship if the applicant is unable to personally operate a vehicle. Other criteria will include the circumstances surrounding the DUI and the probability of another offense by the applicant. Once again, this legislation is pending and will likely encounter substantial opposition but it does indicate a recognition of the hardships faced by NJ drivers as a result of a DUI conviction. For more information on DUI and other municipal court charges in NJ, visit HeatherDarlingLawyer.com.

The Validity of Police "Stop and Frisk" Procedures in NJ

The New Jersey Courts are to enforce the Constitutional right of the public to be "secure in their persons, houses, papers and effects." State v. Tucker, 136 N.J. 158, 165 (1994). A warrantless search must fall within certain carefully detailed exceptions to the warrant requirement. The same is true when a person is seized, which is measured by circumstances under which a reasonable person would not feel free to leave. A police officer may detain a person for a short period if the stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Terry v. Ohio, 392 U.S. 1, 19 (1968) During such a stop, it is permissible for the officer(s) to conduct a limited pat-down search to determine whether the individual is armed in order to ensure officer safety. The evaluation of the validity of such a stop, and any accompanying search, is determined on a case by case basis, therefore subject to interpretation by the judge or jury when presented. A minimum showing that there was some reason to suspect that criminal activity was afoot is required to meet this burden. Recently, the NJ court had reason to decide, in State in the Interest of D.B., whether, when stopping one individual for questioning based on a valid suspicion, the officers could also detain a second individual, D.B. in the company of the suspect being questioned. The court held that the officers had the right to detain the second individual while they made an inquiry into the activities of the first individual but did not have the right to search the second individual unless he or she was also reasonably suspected of proximal participation in criminal activity. In the case of D.B., the police found marijuana on the person of D.B. during the stop yet it was soon revealed that neither individual was involved in the crime which recently occurred and for which D.B.'s companion was suspected. Although the trial court denied the suppression motion, the appellate division reversed and held the evidence should be suppressed because the officers had no reason to pat down D.B. The interpretation of the legality of a search is critical to a defendant. The manner in which the totality of the circumstances is presented by the prosecution and the defense is how the judge or jury will form their opinion and make their decision as to the validity of the search or seizure. When facing criminal charges it is critical that you have an experienced criminal defense attorney at your side. For more information on search and seizure, Terry stops or criminal law in NJ, visit HeatherDarlingLawyer.com.

Paternity and Rights to Parent in NJ

There is a presumption of paternity afforded to a man whose wife has a child during the parties marriage, even if the woman is artificially inseminated medically with the sperm of another donor in order to conceive. This presumption may be inaccurate and sometimes the truth is not discovered until later in the life of the child. A man or woman seeking to establish paternity should do so as soon as possible. In the event paternity is established through DNA testing there are certain legal rights and responsibilities which attach. Those rights and responsibilities also attach in the event of presumptive parentage. This means that if a man raises a child as his own from birth, whether he is the father or not, the rights and responsibilities of parentage will attach. This means whether you are married, live together or live separately but raise a child together the rights and responsibilities of parentage will attach to the male. As the child grows, so does the psychological bond between father and child and there is a presumption that termination of the bond between father and child will not be in the child's best interests. The emotional well being, as well as physical well being, of a child is paramount in the eyes of the court and the child is to be protected first and foremost. For the mother this means if the man presumed to be the father is not actually the biological father and the biological father establishes paternity it will be difficult to sever the relationship and rights between the presumptive father and the child, even though the biological father wishes to participate as the child's parent. It also means that the mother will not be delayed by paternity testing in the event the presumptive father wishes to terminate any child support he is providing the mother on behalf of the child and will be able to proceed directly to court to establish court ordered child support. For the father the presumption of paternity means if the mother wishes to terminate your parenting time with the child and you are not actually the biological father, you will still have certain rights to see the child you have been raising as your own, even if the biological father appears and is seeking custody or parenting time. This also means that the presumptive father will be required to support the child. Additionally, the child will likely be able to inherit from the estate of the father upon his death, whether parentage is presumptive or actual making it a hotly contested topic by families who have never believed parentage of the father to be accurate. If you are a parent questioning the paternity of a young or unborn child you should seek to establish paternity immediately. If you believed to be the father of a child, or you are a mother who believed the presumptive father was the biological father, and have learned this is not true you should immediately seek and experienced family attorney immediately. Additionally, if you recently learned you are the parent of a child you were unaware of and wish to participate in that child's life, you should seek an experienced family lawyer immediately. The emotional well being of the child is paramount but your rights and emotional needs as a parent are important as well and must be protected. For more information on family, matrimonial or same-sex rights to parent, child support, custody or spousal support/alimony matters in New Jersey visit HeatherDarlingLawyer.com.

Consideration of Trust Income in NJ Alimony Calculations

When a Trust is created the intent of the individual creating the Trust, the Grantor, should dictate the manner in which the Trust operates through the actions of the Trustee who administrates the Trust. When a family court is considering an award of alimony to either party, there are many considerations which must be made, one being the marital lifestyle and another being the assets available to either party to support themselves. In the event that the Trustee makes distributions to the beneficiary, in this example, a party to the divorce, in the Trustee's sole discretion and without the influence of the beneficiary, the Trust is less likely to be considered an asset of the spouse in the calculation of alimony. In a recent case, Tannen v. Tannen, the Trustee used trust funds to pay many marital expenses including the children's private school tuition, the cost of a housekeeper, real estate taxes and home renovations. In spite of the use of Trust funds for marital expenses, the Grantor's intent was clearly that the Trustee have discretion to make those, and any other, payments on behalf of the beneficiary spouse rather than to make those obligations in support of the beneficiary spouse. In the event a Trust is created to provide a steady income stream for the support of a party to a divorce, such Trust income would certainly be considered by the court in making a determination of alimony. A divorce has serious financial consequences for both parties and should not be taken lightly. If you are considering a divorce, you should have an experienced matrimonial attorney at your side to guide you through the matter and protect your best interests. For more information on divorce, alimony/spousal support, child support, custody, parenting time, post-judgment modification or same sex dissolution in New Jersey visit HeatherDarlingLawyer.com.

Application of Megan's Law to Juvenile Offenders in NJ

In the fall of 2011, two young boys in Morris County engaged in the conduct of placing their exposed buttocks on the faces of two other young boys with, what the Court found to be, the purpose to humiliate and degrade. Although the offense was certainly improper, it was likely unintended by the assaulting boys, to be of a sexual nature. Nonetheless, the boys committing the act were then subject to potential lifetime registry as Megan's Law offenders. Juveniles are still developing socially and often do not consider the gravity of their actions toward others. The consequences of being found guilty or accepting a plea to which Megan's Law applies are grave. In the case of a juvenile, they will be subject to registration on the Megan's Law registry for life which will limit their opportunities relating to education, careers and even social status. When Megan's Law is applicable there is a right to a jury trial due to the punitive nature of the law. The criminal justice system is comprised of various components ranging from rehabilitation to punishment and juvenile justice has historically leaned toward rehabilitation. Under the New Jersey juvenile justice code, a juvenile has all the same defenses and rights guaranteed to criminal defendants under the Constitutions of the United States and New Jersey except the right to indictment, the right to trial by jury and the right to bail. The restrictions placed on the rights of juvenile defendants stem from the rehabilitative nature of juvenile sentencing. When a juvenile is subject to the punitive nature of Megan's Law and its lifetime effects, the question becomes whether the rehabilitative aspect is replaced by a punitive aspect which should entitle the juvenile to the right to a jury trial even when seeking trial as a juvenile. In the Interest of A.C., the New Jersey Appellate Division recently held that the application of Megan's Law does not entitle a minor to a jury trial in a juvenile case. If a juvenile is charged with a crime, the disposition of the charges can change his or her future. It is critical for any juvenile charged with a criminal offense to seek an experienced criminal defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses or other criminal charges in NJ, visit HeatherDarlingLawyer.com.

Child Custody in NJ Same-Sex Dissolution Matters

A NJ case currently in the spotlight is the Matter of the Parentage of a Child by T.J.S. and A.L.S. Presently, the law confers automatic parental rights to a woman who carries a child or to a child who has her DNA and there is a presumption of paternity for the father of a child born to his wife during the marriage. Unfortunately, things are not so simple for same-sex couples who are terminating relationships in which there are children. Many same-sex couples have had children during the course of their relationship without, or prior to, entry into a civil union. The rights of either the birth mother or the father who provided the sperm have been litigated in the NJ courts and established. The law relating to the partner who is the non-biological parent is still evolving as same-sex marriage, and the associated rights, become a more prevalent issue in legislation as well as litigation. The law permits the non-biological partner to adopt the child without terminating the rights of the biological parent and there are presumptions when the child is born following the couples' entry into a civil union. In the case of In re Parentage of Robinson, the Court issued a pre-birth ruling establishing maternity with the non-biological mother as the second parent through application of the artificial insemination statute when both mothers sought this result. A same-sex partner who is not the biological parent but acted as the child's parent in a family relationship does have parental rights. When the parties have had a child prior to, or without entering into, a civil union and the parent who is the non-biological partner wishes to exercise legal rights to custody and parenting time following dissolution of the relationship, the award of custody and parenting time must ultimately turn on the same standard as applied in a dissolution of marriage, the best interests of the child. For more information on same-sex dissolution, divorce, child custody, alimony/spousal support, child support or other family law issues visit HeatherDarlingLawyer.com.

Search, Seizure and Suppression of Evidence in NJ

The Courts of New Jersey hear motions to suppress in many criminal cases. In 3 recent cases involving guns in Passaic County, drugs in Essex County and a DUI arrest in the town of Mt. Olive in Morris County, the state has found that there were applicable exceptions to the otherwise illegally obtained evidence and denied the motions to suppress. In State v. Love, the court held that a handgun found in the trunk of a suspect in a search conducted after an empty gun holster and empty magazine were illegally seized from the vehicle and the suspect consented to a search of the vehicle only after being advised he would be detained until such time as a warrant was obtained if he failed to consent. The court held probable cause did exist for a warrant and, even though none was obtained, the search was upheld and utilized the "inevitable discovery" exception to refuse to suppress the evidence. In State v. Dillard, the court held that drugs discarded by a fleeing suspect and a shotgun found in the house into which the suspect fled were includable under the "hot pursuit" exception. In State v. Maclay, the court held that a DUI arrest was valid in spite of the fact that the suspect was stopped only after a call was made by an off-duty police officer to an on duty police officer alerting him of a possible drunk driver. The court found there was a reasonable articulable reason for the stop. Motions to suppress evidence are difficult but possible if the appropriate facts exist. If you are charged with a crime in New Jersey you should immediately hire an experienced criminal attorney who will immediately review the facts of the case and determine how to best help you to defeat the charges against you. For more information on illegal searches, motions to suppress or criminal matters including drug (CDS), gun, assault, domestic violence, burglary, theft, shoplifting and DUI/DWI in NJ visit HeatherDarlingLawyer.com.