The right to remain silent when being questioned by the police is well founded in both the Supreme Court and the New Jersey Courts. The reason for Miranda warnings advising of the right to remain silent is to insure individuals are aware of this right before questioning by police.
Individuals questioned in regard to crimes for which they are suspects, including serious traffic violations, throughout New Jersey should invoke their right to remain silent.
Unfortunately, even after being told they have the right to remain silent, many people answer questions asked by police officers because they believe they have to based upon the custodial situation. Another issue is that the invocation of the right is sometimes dishonored by police or prosecutors when an accused seeking to invoke the right to remain silent does not use the "right" words. There are no magic words required to invoke the right to remain silent but it must be clear that an accused it invoking the right to remain silent.
Recently, in State v. Dias-Bridges, A.3d, 2012 WL 87194, N.J., the accused requested that questioning cease until he spoke with his mother but also stated he would continue to answer questions after he spoke with his mother. He failed to state that he did not wish to answer further, that he would not say anything else or that he wished to speak to his attorney and then silent after any of the prior statements.
If you are being questioned in regard to a crime in which you are a suspect you should tell the officer(s) questioning you that you wish to speak to your attorney. You may provide the police with your name, or in the case of a motor vehicle offense, your driver's license, insurance and registration. Repeat that you wish to speak to your attorney to each and every officer who attempts to speak with you thereafter. Remember that anything you say can and will be used against you in a court of law. This means that what appears to be a friendly conversation with an officer offering you the chance to "help yourself" will later be used against you by the police and prosecution. Call your attorney at the first opportunity.
For more information on criminal charges in New Jersey visit HeatherDarlingLawyer.com.
Saturday, January 21, 2012
Monday, January 9, 2012
NJ Still Waiting for Medical Marijuana
New Jersey's medical marijuana program remains in its infancy state. Officials have taken major steps to get six treatment centers serving thousands of patients up and running but a major hurdle is coming from the refusal on the part of individual towns, through their zoning boards and councils, which continue to refuse to permit medical marijuana distribution facilities. Most recently, the township of Plumstead's council voted to exclude and distribution facility absent certainty that federal law would not be violated.
Although New Jersey has established a program for six approved growers little headway has been made since the law passed nearly two-years ago. For patients in need of medical marijuana this situation is largely frustrating, leading some to self-medicate in the interim. Unfortunately there are legal consequences to the decision to self-medicate in spite of the states obvious recognition of the need for medical marijuana.
Drug charges can vary in penalties, depending on the severity of the offense. Whether you are facing possession charges or are being investigated for distribution or trafficking, you need aggressive defense to protect your rights throughout the process. For more information on drug charges in NJ visit HeatherDarlingLawyer.com or call us at 973-584-6200 to obtain representation against NJ drug charges.
Although New Jersey has established a program for six approved growers little headway has been made since the law passed nearly two-years ago. For patients in need of medical marijuana this situation is largely frustrating, leading some to self-medicate in the interim. Unfortunately there are legal consequences to the decision to self-medicate in spite of the states obvious recognition of the need for medical marijuana.
Drug charges can vary in penalties, depending on the severity of the offense. Whether you are facing possession charges or are being investigated for distribution or trafficking, you need aggressive defense to protect your rights throughout the process. For more information on drug charges in NJ visit HeatherDarlingLawyer.com or call us at 973-584-6200 to obtain representation against NJ drug charges.
Sunday, January 8, 2012
NJ DUI- Field Sobriety Tests
Recently, in New Jersey, the Appellate Court upheld the decision in State v. Bernoketis whereby probable cause is not required in order to administer field sobriety tests. Reasonable, articulable suspicion, the same requirement for an investigatory stop of any individual, is all that is required in order for a police officer to administer field sobriety tests to an individual stopped for a routine traffic violation.
What this decision means to drivers is being pulled over for anything, even a seat belt violation, who appears to "seems to be" under the influence to the officer can be required to exit their vehicles and perform field sobriety tests. Reasonable, articulable suspicion is up to the discretion of the officer first, then the Judge if a DWI summons is issued following the field sobriety tests. Of course there will also be an Alcotest administered, barring refusal by the driver, which may be used by the prosecution or the defense depending on the result.
The consequences for a DWI in New Jersey are significant and a DWI defense should not be faced alone. It is your right to have counsel to represent you in a DWI.
For more information on NJ DUI law, or to obtain representation in a NJ DUI, please visit HeatherDarlingLawyer.com or contact us at 973-584-6200.
What this decision means to drivers is being pulled over for anything, even a seat belt violation, who appears to "seems to be" under the influence to the officer can be required to exit their vehicles and perform field sobriety tests. Reasonable, articulable suspicion is up to the discretion of the officer first, then the Judge if a DWI summons is issued following the field sobriety tests. Of course there will also be an Alcotest administered, barring refusal by the driver, which may be used by the prosecution or the defense depending on the result.
The consequences for a DWI in New Jersey are significant and a DWI defense should not be faced alone. It is your right to have counsel to represent you in a DWI.
For more information on NJ DUI law, or to obtain representation in a NJ DUI, please visit HeatherDarlingLawyer.com or contact us at 973-584-6200.
Thursday, October 27, 2011
NJ Alcotest Trial
A guilty verdict in a DUI can have serious consequences including loss of license, heavy fines and even incarceration.
If you have been charged with DUI in New Jersey, there are ways in which you can beat the charges. The Prosecutor MUST prove, by clear and convincing evidence, you were 1) operating a motor vehicle and 2) under the influence an intoxicant.
Provided it is possible, the accused is typically forced to submit to "field sobriety tests" by a trained officer. Of course, this is a subjective test and may be affected by many issues such as inner ear infections and other issues causing balance problems, disabilities or injuries causing balance or mobility problems, eye problems and other medical conditions or medicines.
In NJ you will also be asked to submit to an Alcotest (formerly Breathylizer) which determines the amount of alcohol in your blood by taking a breath sample. Although the officer administering the test will claim it is infallible, there are multiple parts to the machine which all must be working properly. A trained DUI attorney knows the parts of the machine subject to attack and how to go about proving they were not working properly at the time the Alcotest was administered to the accused. Additionally, there are certain conditions under which the test must be administered which a trained DUI lawyer is aware of and knows to look for. Finally, the officer administering the test must not only follow proper procedure but must be certified to perform the test as well.
We also have trained experts available to assist you in your case against a DUI matter. These experts were former Alcotest operators and trainers who trained the offices to use the alcotest machines. They know how to help us beat a DUI.
If you have been charged with DUI in Morris, Sussex, Bergen or Passaic County, New Jersey visit HeatherDarlingLawyer.com for more information or contact us directly at 973-584-6200 to get the help you need.
A DUI is a serious matter and should not be faced alone.
For more information about us or a DUI visit HeatherDarlingLawyer.com
If you have been charged with DUI in New Jersey, there are ways in which you can beat the charges. The Prosecutor MUST prove, by clear and convincing evidence, you were 1) operating a motor vehicle and 2) under the influence an intoxicant.
Provided it is possible, the accused is typically forced to submit to "field sobriety tests" by a trained officer. Of course, this is a subjective test and may be affected by many issues such as inner ear infections and other issues causing balance problems, disabilities or injuries causing balance or mobility problems, eye problems and other medical conditions or medicines.
In NJ you will also be asked to submit to an Alcotest (formerly Breathylizer) which determines the amount of alcohol in your blood by taking a breath sample. Although the officer administering the test will claim it is infallible, there are multiple parts to the machine which all must be working properly. A trained DUI attorney knows the parts of the machine subject to attack and how to go about proving they were not working properly at the time the Alcotest was administered to the accused. Additionally, there are certain conditions under which the test must be administered which a trained DUI lawyer is aware of and knows to look for. Finally, the officer administering the test must not only follow proper procedure but must be certified to perform the test as well.
We also have trained experts available to assist you in your case against a DUI matter. These experts were former Alcotest operators and trainers who trained the offices to use the alcotest machines. They know how to help us beat a DUI.
If you have been charged with DUI in Morris, Sussex, Bergen or Passaic County, New Jersey visit HeatherDarlingLawyer.com for more information or contact us directly at 973-584-6200 to get the help you need.
A DUI is a serious matter and should not be faced alone.
For more information about us or a DUI visit HeatherDarlingLawyer.com
Saturday, March 26, 2011
Tracking you
Although most of us are aware that our cell phones, GPS devices, laptops, netbooks and the like offer a glimpse into who and often where we are but just how much information is recorded about us. In addition to "cookies" being added to your devices to determine your demographic, spending habits, hobbies, interests and anything useful to advertisers your cell phone provider may be giving even more information. For those of you who cannot live without your Blackberry, iPhone or Droid be aware that every 7 seconds your cellular company sends a signal to determine where you will receive the best reception. The answer is recorded. In case you missed that, every 7 seconds your location is being recorded. This is in addition to the existing record of your texts, calls, internet usage and the like. Unless you plan to give up your phone there is nothing you can do to fight this as it is perfectly legal for your cellular provider to continue to strive to improve their service to you. Just remember that if you are accused of criminal activity these records are readily available now to prove your whereabouts and it is only a matter of time until they become common discovery in criminal proceedings.
For more infomation on criminal matters in New Jersey visit HeatherDarlingLawyer.com
Sent from my Verizon Wireless BlackBerry
For more infomation on criminal matters in New Jersey visit HeatherDarlingLawyer.com
Sent from my Verizon Wireless BlackBerry
Sunday, January 23, 2011
Warrantless Searches
Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions.” State v. Pineiro, 181 N.J. 13, 19, 853 A.2d 887 (2004). Failure to obtain a warrant or meet the burden of proof of one of the exceptions to the requirement of a warrant is reason to bring a Motion to Suppress illegally seized evidence in order to obtain a not guilty result for a criminal defendant.
When no warrant is sought, the State has the burden of proving by a preponderance of the evidence that the warrantless search falls within one of the few well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973)
In many warrantless search and seizure matters "probable cause" is the stated reason for the failure to obtain a warrant. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), defined probable cause as existing "where ‘the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Of course this definition leaves much to the discretion of the officers and has served as both the reason for success and failure of multitudes of suppression motions.
In obtaining a warrant the police must set forth a sound basis for undertaking a search and seizure prior to said undertaking, without the benefit of any further knowledge or evidence obtained during the search itself. By undertaking a warrantless search and seizure the police are able to avoid some of the investigation otherwise required in building their case against the the accused by merely using the evidence obtained in the warrantless search to later obtain facts unknown at the time of the search which they may then be used to secure a conviction against a criminal defendant.
At all times an individual has a right to certain expectations of privacy in his or her belongings and person. What constitutes a violation of the Fourth Amendment rights of the person against unreasonable search and seizure is a regular and hotly contended matter within the Courts and anyone believing their Fourth Amendment rights to be free from unreasonable search and seizure should consult defense counsel to insure those rights are properly protected by suppression of any evidence seized in violation thereof.
For more information or representation in the event of a violation of Fourth Amendment rights visit HeatherDarlingLawyer.com.
When no warrant is sought, the State has the burden of proving by a preponderance of the evidence that the warrantless search falls within one of the few well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973)
In many warrantless search and seizure matters "probable cause" is the stated reason for the failure to obtain a warrant. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), defined probable cause as existing "where ‘the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Of course this definition leaves much to the discretion of the officers and has served as both the reason for success and failure of multitudes of suppression motions.
In obtaining a warrant the police must set forth a sound basis for undertaking a search and seizure prior to said undertaking, without the benefit of any further knowledge or evidence obtained during the search itself. By undertaking a warrantless search and seizure the police are able to avoid some of the investigation otherwise required in building their case against the the accused by merely using the evidence obtained in the warrantless search to later obtain facts unknown at the time of the search which they may then be used to secure a conviction against a criminal defendant.
At all times an individual has a right to certain expectations of privacy in his or her belongings and person. What constitutes a violation of the Fourth Amendment rights of the person against unreasonable search and seizure is a regular and hotly contended matter within the Courts and anyone believing their Fourth Amendment rights to be free from unreasonable search and seizure should consult defense counsel to insure those rights are properly protected by suppression of any evidence seized in violation thereof.
For more information or representation in the event of a violation of Fourth Amendment rights visit HeatherDarlingLawyer.com.
Friday, October 22, 2010
Foreclosure frenzy
Who is responsible for the foreclosures we are constantly reading about in the news these days? Lately the culprits are the "robo-signers", previously it was the Wall Street derivatives market's demand for new products and before the blame was carved into parts it was simply called predatory lending. Is it really the fault of lenders or should Courts and lawmakers also be looking at predatory borrowing? Of course there were self-proclaimed "investors" brainwashed by the likes of Robert Kiyosaki into believing they could become the next real estate moguls by levaraging their funds, or in many cases their homes, only to find that leverage is a 2 way street and if money, from rent or re-sale, is not coming in faster than it goes out levarage spells trouble. When the market bubble burst and people stopped buying real estate at ever inflating prices or could not pay rent then all the Kiyosaki taught "investors" were hard hit. We can call that the cost of doing business for them and they can decide whether to blame Kiyosaki, the banks or themselves.
For individuals there are different stories and reasons for crisis but in most cases it comes down to greed. Sure the banks allowed people to turn their homes into personal ATM machines by writing second and even third mortgages against personal residences of borrowers so they could leverage the ever increasing "value" in their homes. The banks did not actually force anyone to take those mortgages. The banks, whether they failed review all applications, failed to accurately appraise properties or whatever other manner in which they failed to "protect" the borrower from the borrowers own greed did not actually force the borrower to accept the funds but rather enabled the borrower to do as he or she wished. The second class of individual borrowers now suffering are those who purchased as much as a lender would possibly allow based on "house of cards" funding where if a wind blew the structured "deal" would fall apart.
The wind that blew turned out to be a tornado as the market bubble burst but this was as much the borrower's fault as the lender's. The practice of saving was forgotten and people were living for the next indulgence they could impress their friends with. Even immigrants coming to this country and taking jobs as laborers were buying the so called "McMansions" based on wages that could hardly pay for a reasonable home.
Of course there are the unfortunate individuals who practiced sound spending and saving but suffered tragic accidents or illnesses and sadly are now experiencing the same difficulty as the greedy.
Now what of the savers who practiced sound spending who are paying ever increasing taxes and whose children and grandchildren are faced with the largest deficit this country has ever known. Should it be their responsibilty to save the banks who are now forced by the Courts and government to accept responsibility for the greed of consumers and write down these loans at huge losses only to be later "rescued" by the government at the ultimate expense of the frugal who are now the only ones still paying their bills? Or should those who enjoyed the spoils of their greed be made to actually pay for it this time by remaining in their homes and paying modified amounts for longer terms without the benefit of handouts or rescues which are shortly therafter followed by the extension of new credit lines likely be utilized by these individuals who have been taught they can have all the luxuries in life for free?
Sent from my Verizon Wireless BlackBerry
For individuals there are different stories and reasons for crisis but in most cases it comes down to greed. Sure the banks allowed people to turn their homes into personal ATM machines by writing second and even third mortgages against personal residences of borrowers so they could leverage the ever increasing "value" in their homes. The banks did not actually force anyone to take those mortgages. The banks, whether they failed review all applications, failed to accurately appraise properties or whatever other manner in which they failed to "protect" the borrower from the borrowers own greed did not actually force the borrower to accept the funds but rather enabled the borrower to do as he or she wished. The second class of individual borrowers now suffering are those who purchased as much as a lender would possibly allow based on "house of cards" funding where if a wind blew the structured "deal" would fall apart.
The wind that blew turned out to be a tornado as the market bubble burst but this was as much the borrower's fault as the lender's. The practice of saving was forgotten and people were living for the next indulgence they could impress their friends with. Even immigrants coming to this country and taking jobs as laborers were buying the so called "McMansions" based on wages that could hardly pay for a reasonable home.
Of course there are the unfortunate individuals who practiced sound spending and saving but suffered tragic accidents or illnesses and sadly are now experiencing the same difficulty as the greedy.
Now what of the savers who practiced sound spending who are paying ever increasing taxes and whose children and grandchildren are faced with the largest deficit this country has ever known. Should it be their responsibilty to save the banks who are now forced by the Courts and government to accept responsibility for the greed of consumers and write down these loans at huge losses only to be later "rescued" by the government at the ultimate expense of the frugal who are now the only ones still paying their bills? Or should those who enjoyed the spoils of their greed be made to actually pay for it this time by remaining in their homes and paying modified amounts for longer terms without the benefit of handouts or rescues which are shortly therafter followed by the extension of new credit lines likely be utilized by these individuals who have been taught they can have all the luxuries in life for free?
Sent from my Verizon Wireless BlackBerry
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