Your Right to an Independent Blood Alcohol Test

December 1, 2016 by

Drunk-Driving-Attorney

In New Jersey, if you are pulled over and the officer suspects you were driving drunk, he or she may use a breathalyzer test to measure your blood alcohol content (BAC), which can be used as evidence against you if you are later charged for DUI/DWI. Police stations across the state use a machine called the Alcotest 7110 MK-IIIC to measure your BAC and determine whether or not you are at or over the legal limit of .08%.

Importantly, many drivers do not know that if you submit to a breathalyzer test, you also have the right to an independent test of your urine, blood, or breath sample. If your BAC results are close to .08%, an independent test can show that the breathalyzer results were inaccurate and you were actually below the legal limit for drunk driving. Similarly, the law requires that you be informed of your right to an independent chemical test, and, if you can prove that the government failed to inform you of this right, you may be able to have the breathalyzer evidence thrown out.

As always, challenging the evidence against you in a DUI/DWI trial can be very complicated, and it is important to retain an experienced drunk driving lawyer if you or a loved one is charged with driving under the influence of alcohol or drugs, in order to ensure that the best defense is presented on your behalf.

Your Legal Right to an Independent Breath, Blood, or Urine Test

N.J.S.A. 39:4–50.2 establishes that drunk driving is a quasi-crime, and a driver who is suspected of drunk driving does not have a right to refuse to provide a breath sample (as discussed previously in this blog). At the same time, if a police officer decides a driver must provide a breath sample for the purposes of determining BAC, N.J.S.A. 39:4–50.2 also provides the same driver with the right to have a person or physician of the driver’s own choosing perform an independent breath, urine, and blood test. This protects the driver’s rights and helps to ensure that any BAC test performed by the police is accurate.

Learning About Your Right to an Independent Test

New Jersey law actually states that a defendant must be informed of his or her right to an independent test by the police officer who orders the breath test. Of course, this is limited to situations in which the individual is required to provide a breath sample, and there is no equivalent requirement in the event that BAC is calculated based on a blood sample.

In practice, police officers in most police stations will read a series of pre-printed paragraphs to any driver who is being asked to provide a breath sample. These paragraphs generally include a statement – referred to in many places as “paragraph 36” – that attempts to inform the driver of his or her right to obtain an independent test. The courts have considered this to be sufficient notice under the law.

If no notice is provided to a driver when he or she is asked to provide a breath sample, then an experienced attorney may be able to keep out any BAC evidence obtained by the police officers at the time of trial.

Having an Independent BAC Test Performed

The law does not require a police officer or a police station to have any established procedures to help a driver obtain an independent chemical test – however, the law is clear that police may not interfere with or thwart a suspect drunk driver’s attempt to exercise the right to independent examination.

Therefore, a driver is largely on his or her own with regard to obtain an independent chemical test. He or she may do this by contacting an attorney or family member who can help get an independent test done. In State v. Jalkiewicz, the court ruled that the police fulfilled its duty when it advised the defendant of his right to an independent test and then summoned a taxi cab for the driver.

At the same time, in State v. Bradley and State v. Nicastro, the court ruled that the government actively prevented suspected drunk drivers from exercising their rights to an independent BAC test when the police refused the drivers’ request to be taken to the hospital for an independent test and also refused the drivers’ request to call a taxi to take them to the hospital. In both of these cases, the court determined that the BAC test results taken by the police could not be used in court.

Finally, in State v. Greeley, the Supreme Court determined that if the police refuse a suspected drunk driver’s request for a taxi, there must be some means for the person to obtain an independent chemical test, such as being released into the custody of a family member or friend.

As in Bradley and Nicastro, it is extremely important that you contact an experienced attorney whenever you are charged or suspected of a DUI or DWI. An attorney can help provide the best defense in your case and ensure that your rights have not be violated.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Will Fight for Your Rights

If you or someone you know is charged or suspected of driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have in your specific situation.  If you go to court, an experienced lawyer can also make sure you get the best result possible and can make all the difference.  To speak with an experienced New Jersey DWI/DUI lawyer bout your situation, call us at 732-257-1137 contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, New Jersey Attorney Tagged With: , , ,

New Bail Reform Laws and Your Right to a Speedy Trial

November 23, 2016 by

Car keys, a shot of liquor and handcuffs on a table

The Constitutional right to a speedy trial guarantees certain rights to any driver who is charged with driving under the influence of alcohol or drugs, whether the driver is asserting the right in municipal court or in the Law Division of the Superior Court. After a driver is arrested and charged, the driver or the court may assert the right to a speedy trial. This right then prevents the driver from having to wait an unconstitutionally long time before having his or her case resolved in court.

In New Jersey, the general rule is that a DUI/DWI case must be delayed at least six months before it can be considered unreasonable. Once a case has been delayed at least six months, a court may take a look at why the case is taking so long. The court may be willing to dismiss the case if the reason for delay is not because of the defendant, but due to the State or the court.

This is good because it would be unfair to make a person wait years before knowing whether or not he or she will be found guilty and forced to go to jail, pay fines, or suffer other consequences that can affect the person’s life, job, and family.

Right to a Speedy Trial and the New Bail Reform Laws

Beginning on January 1, 2017, the State of New Jersey will also begin implementing new Bail Reform laws across the state (although some counties started pilot programs for Bail Reform already). The new laws separate crimes committed after January 1, 2017 into two categories: crimes that result in a complaint-summons and crimes that result in complaint-warrants. When someone is charged with a crime that is placed on a complaint-summons, they will generally be free to return home.

In certain cases, however, the person may be momentarily detained while the State makes a motion to detain the defendant pending trial, and a hearing before a judge must then take place within 5 days from the time of arrest. At that time it will be determined whether the defendant’s crime is placed on a complaint-warrant and the individual will be detained – meaning he or she will be held in jail. In those cases, the State is required to follow certain timelines under Bail Reform, or else the individual must be released from jail and allowed to go home:

  • 1) Pre-Indictment (90 days not including excludable time) – The State must indict a defendant within 90 days from the time the person is ruled detained, not counting excludable time.
  • 2) Post-Indictment (180 days not including excludable time) – After a person is indicted, a defendant should not remain detained without going to trial for more than 180 days on that charge following the return or unsealing of the indictment, not counting excludable time.
  • 3) Overall (2 years not counting excludable time) – An eligible defendant must be released from jail, possibly under conditions set by the court, if the State is still not ready to start trial after two (2) years after the court issues a pre-trial detention order for the defendant, excluding any delays attributable to the defendant.

It is important to recognize that Bail Reform rights are different than the right to a speedy trial. Therefore, if you are charged with a crime and immediately released, or if you are briefly detained but released before trial, it does not mean that your case is dismissed. You will still need to attend court on your scheduled trial date or for other required appearances.

DUI, DWI, and Driving on a Suspended or Revoked License

In general, most crimes will be classified as complaint-summons type crimes under the Bail Reform standards. Most motor vehicle charges including driving under the influence of alcohol or drugs or driving on a suspended license will be handled by a municipal court and the above timelines will not apply. There are a few crimes that could be included, however:

  • 1) A DUI/DWI that results in a death or vehicular homicide charge;
  • 2) A DUI/DWI that results in a serious or permanent injury to a victim;
  • 3) Driving with a suspended or revoked license, when driving privileges were taken away as the result of a previous DUI/DWI or another occurrence of driving with a suspended or revoked license.

In these circumstances, a driver will be entitled to specific rights under both Bail Reform and the Right to a Speedy Trial.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Explain Your Rights and Defend You in Court

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, or for driving with a revoked or suspended license, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have in your specific situation. If you go to court, an experienced lawyer can also make sure you are being treated fairly and get you the best result possible. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Drunk Driving, DWI - DUI

Breaking News: Federal Class Action Lawsuit Seeks to Throw Out Thousands of New Jersey DWI/DUI Convictions

November 14, 2016 by

A recent class action lawsuit that was filed in October is trying to throw out potentially thousands of DWI/DUI convictions in the state of New Jersey, arguing that the State Police failed to properly calibrate the breathalyzer devices used to test suspected drunk drivers. If these allegations are true, it is possible that many breathalyzer test results were inaccurate and could have been used to unfairly convict drivers in the state.

As discussed in the past, if you are pulled over in New Jersey and the officer has reasonable cause to believe that you were driving under the influence of alcohol or drugs, the officer may use a breathalyzer test to measure your blood alcohol content (BAC), which can be used as evidence against you if you are later charged for DUI/DWI. The official test used in this state is the Alcotest 7110 MK-IIIC, and there are certain rules that state must follow in order for the test to be valid.

Regulation of Alcotest 7110 and other BAC Tests

In order to be considered legally valid and admissible in evidence, a BAC test must be performed on a Alcotest 7110 MK-IIIC machine, which is the only device that has been approved by the attorney general for legally measuring BAC evidence. Moreover, the person who performs the test must be properly trained and approved by the attorney general, and there are certain rules that must be followed for certifying, maintaining, and inspecting the machine. One of the rules is that the machine must be calibrated in a specific way every six months.

The Federal Lawsuit and What it Says

The new lawsuit, which was filed last month in the New Jersey District Court, argues that some or all of the breathalyzer readings taken of suspected drunk drivers by state police officers cannot be trusted after the state Attorney General’s Office charged Sgt. Marc Dennis with records tampering.

Sgt. Dennis was a coordinator for the New Jersey State Police’s Alcohol Drug Testing Unit, and he was responsible for calibrating breathalyzers and certifying their accuracy. The lawsuits states that Sgt. Dennis falsely certified that he had properly followed all the required steps in calibrating at least three machines used to provide BAC evidence in more than 20,600 cases in Middlesex, Monmouth, Ocean, Somerset and Union counties.

If the lawsuit demonstrates that the machines calibrated by Sgt. Dennis were not properly maintained according to the legally required procedures, it is possible that the BAC readings produced were inaccurate and some of the convictions made based on that evidence will need to be reversed. This would be especially true if a driver were convicted with a reading that was close to the legal limit of .08% BAC.

Challenging a Blood Alcohol Content of .08% or Higher

If you are charged with driving under the influence of alcohol, and you provide a breathalyzer sample of .08% or higher, that BAC reading can be used as evidence in a DUI/DWI case against you.

Because the process is strictly regulated, an experienced attorney may be able to raise several challenges to the BAC results in your defense, including:

  • Improper certification of the Alcotest machine
  • Improper calibration of the Alcotest machine
  • Improper qualification or certification of the officer operating the Alcotest machine
  • Possible contamination of the Alcotest reading
  • Improper collection of breath sample and evidence

Because BAC readings are not always perfect, it is especially important to always consult an experienced DWI/DUI lawyer if you are pulled over and charged with drunk driving. A drunk driving attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Defend You if You Are Charged with Drunk Driving

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have in your specific situation. If you go to court, an experienced lawyer can also make sure you get the best result possible. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, Drunk Driving, Federal Class Action Lawsuit

Driving While in Possession of a Prescription Drug

November 4, 2016 by

Pills Spilling From Bottle

While many people are aware that it is illegal to drive while under the influence of alcohol or illegal drugs, such as marijuana or cocaine, some people do not realize that driving under the influence of prescription drugs can also be illegal, especially if the driver does not have a valid prescription for those drugs. Similarly, you can also be charged for merely having a prescription drug that is not yours, either on your person or in the vehicle. That means that if you are pulled over and charged with possession of a controlled substance or medication that belongs on the list of drugs that must be prescribed by a licensed medical professional, and the items in your possession do not belong to you and a doctor did not prescribe it you, then you can face serious consequences, including fines and loss of driving privileges.

Lawfully Possessing a Prescription Drug N.J.S.A. 39:4-49.1

New Jersey statute, N.J.S.A. 39:4-49.1, states that you cannot you cannot drive a motor vehicle while in possession of any “prescription legend drug” unless you have obtained the substance or drug directly from, or with a valid prescription of, “a duly licensed physician, veterinarian, dentist, or other medical practitioner licensed to write prescriptions.” The drug must also be intended for the treatment or prevention of a disease in a person or animal, unless you have the substance according to a lawful order of the medical practitioner.

The law defines a “prescription legend drug” to mean any drug which, under federal or State law, requires dispensing by prescription or order of a licensed medical practitioner and is required to bear the statement “Rx only” or similar wording. Such drugs are carefully controlled, and usually bear labels that identify the type of drug, the amount of drug, the proper dosage, any instructions for taking the drug, and the name of the person for whom the drug was prescribed. This is different than an over the counter medication, which you can buy at any pharmacy, and does not require a pharmacist or other medical practitioner to sell or dispense.

Penalties for Violating the Prescription Drug Law

If you are caught with a prescription drug that does not belong to you, the consequences are extremely serious, and may make it difficult for you to work or provide for yourself or your loved ones. If you are convicted, you could lose your driving privileges for two (2) years from the date of conviction. Additionally, you can be fined for $50 dollars plus $33 in court costs and a $6 surcharge.

How an Experienced Attorney Can Help if You Are Charged

There are some important requirements established by N.J.S.A. 39:4-49.1 that must be proven by the government before you can be convicted of violating the law. An experienced DUI/DWI attorney will be able to identify these distinctions in your case and may be able to have the charges against you dismissed completely.

First, the law only applies to the operator or driver of a motor vehicle, as opposed to some other laws which apply to all occupants of a motor vehicle. Second, the vehicle must be operated on a public roadway (which varies from drunk driving or the open container law that was previously discussed, which apply in other places, too).

Third, the law requires the driver to knowingly possess the controlled substance or prescription drug. Therefore, if the drug is in the trunk of the vehicle, or if it is in the possession of a passenger, then the driver may not know that the medication is in the vehicle.

Finally, an experienced attorney may be able to help get the charges against you dismissed by showing that you are legally in possession of the prescription drugs, or the lawyer may be able to have the charges against you dismissed or merged into another offense in the course of obtaining a plea bargain on your behalf.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Explain Your Rights and Defend You in Court

If you or someone you know is charged for any crime relating to driving while in possession of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who can explain what consequences you are facing in your specific situation. Such a charge can result in severe penalties that affect you and your loved ones. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Driving Under the Influence of Drugs, DWI - DUI

New Jersey’s Open Container Law

October 24, 2016 by

Opening of beer cap

A lot of people know that you are not allowed to drive a vehicle with an open container of alcohol inside. Open container laws actually exist in some form or other in almost every state due to a requirement of the federal Transportation Equity Act for the 21st Century, including New Jersey – a total of 43 states have open container laws in place, 40 of which conform to the federal standards outlined in the Act. However, while most New Jersey drivers know about these laws, many do not know exactly how the laws work, what the penalties are, and if there are any exceptions to the rule.

Open Containers of Alcoholic Beverages in a Motor Vehicle

New Jersey statute, N.J.S.A. 39:4-51b, makes it illegal for any occupant of a motor vehicle to have an open or unsealed alcoholic beverage inside of the motor vehicle that is on a public roadway. The law applies even if the person is not drinking the alcohol (meaning consumption is not required for the behavior to be illegal). Moreover, the law applies even if the person with the drink is not the driver – no one in a motor vehicle may have an open alcoholic drink in New Jersey.

Penalties for Violating the Open Container Law

If you are caught with an open container of beverage in a motor vehicle on a public road in New Jersey, you can be charged with a fine for $200 dollars plus $33 in court costs and a $6 surcharge for a first offense. For a second offense, you can be charged $250 or 10 days of community service, plus $33 in court costs and a $6 surcharge. There are no Division of Motor Vehicle points or surcharges associated with this violation.

Exemptions from the Open Container Law

There are some exemptions listed under N.J.S.A. 39:4-51b. The most important one allows you to carry an open container of alcohol if you place the bottle in the trunk of your vehicle. If you are in a vehicle without a closed off trunk space, such as an SUV or hatchback car, then you can place the container behind the last upright seat – essentially where a trunk would be in the vehicle. There is also an exemption that exists for RVs, motor homes, and house trailer type vehicles – an open alcoholic beverage can be placed or held in the living quarters area of such a vehicle. Similarly, an exemption exists for certain special vehicles, such as limousines or special charter buses with specific license that would allow a person in the passenger area of such a vehicle to be excluded from the open container law requirements.

Finally, the law requires a passenger to knowingly have the open container in order for him or her to be penalized under the statute. This means that you are not guilty simply because you are a passenger in a vehicle with an open container of alcohol – it has to actually or constructively be yours. For instance, if you are in a vehicle with several other people, and one of the passengers has an open container of alcohol, you cannot be found guilty of violating the law if you did not know about the alcohol. At the same time, even if the bottle is not yours, you may be charged with breaking the law if you take possession of the bottle, such as by drinking it.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Explain Your Rights and Defend You in Court

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, including an open container law, it is extremely important to contact an experienced DUI/DWI attorney who can explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can also argue on your behalf and help get you the best result possible. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: DWI - DUI, New Jersey Open Container Laws

Potential New “Breathalyzer” That Can Detect Marijuana Use While Driving

October 17, 2016 by

Man driving and smoking joint

Stanford University recently announced that they have successfully developed a device to measure the amount of marijuana in a person’s body. Unlike a traditional breathalyzer, which can measure the amount of alcohol in your breath to determine your blood alcohol content (BAC), the new device called a “potalyzer” can measure the amount of tetrahydrocannabinol (THC) in your saliva. Although this is not yet being used by law enforcement in New Jersey, it is extremely important because it means that police may soon have a scientific way of testing to see if you have been driving under the influence of drugs like marijuana simply and quickly. The timeline for implementing this or another similar test may move very quickly, because it is possible that lawmakers will consider legalizing small quantities of marijuana for medicinal or even recreational use in the future.

Developed by Dr. Shan Wang of Stanford University and his team, the potalyzer uses magnetic biosensors to detect THC molecules in saliva. Reports indicate that the new tool is accurate enough to detect as little as 0 to 50 nanograms of THC per milliliter of spit. This is big news, especially for states where marijuana use has been legalized. While those states continue to have DUI/DWI laws outlawing driving while impaired (this includes via marijuana use), up until now, law enforcement have had difficulty prosecuting such a crime, because they could not prove when or how much marijuana someone has consumed. Unlike alcohol, THC (marijuana’s main psychoactive component) remains in one’s blood much longer than alcohol, meaning you could still test positive for marijuana use even if the marijuana is no longer affecting your ability to drive.

For states like New Jersey, where marijuana laws are much stricter, the new potalyzer could actually increase the likelihood that marijuana will be legalized for additional uses, because the inability to enforce marijuana DUI laws will be less of an issue. Now, by being able to measure THC levels, not just its presence, science can begin to correlate certain levels with driver impairment and then create impairment standards. This is essentially like BAC laws that exist for alcohol, but based on the amount of marijuana in a person’s saliva.

Like the breathalyzer, the potalyzer may also prove popular because it does not require taking a blood sample or involve other extremely invasive measures. The test involves mixing some of a driver’s saliva with antibodies that bind to the THC molecules and act as markers. The sample is then spread on a test strip that’s been pre-coated in THC and loaded into a handheld measuring device, to determine how much unbound THC remains. By doing this, the system can accurately estimate how much THC was present in the driver’s saliva, and the results can be displayed quickly.

Interestingly, researchers suggest that this new technology can also reportedly be applied to almost any small molecule including morphine, heroin, methamphetamine or any number of controlled dangerous substances. Because many drugs are used by smoking or inhaling, this new technology could lead to a number of quick, saliva-based drug tests in the future that will affect how driving under the influence of drugs (DUID) laws are enforced.

The Need for an Experienced DWI / DUI Attorney

Obviously, before this test is implemented anywhere, further research will be needed to see how a driver’s tolerance impacts his or her ability to handle different amounts of THC to determine specific legal limits. With this new device, however, it will likely come sooner rather than later. Regardless of whether or when this device is implemented, New Jersey law still holds that if you have used a substance that would change your normal physical coordination or mental abilities to the point that you can be considered a danger to yourself or others on the road, then you may be charged with DUID. The consequences of driving under the influence of drugs are very serious and can include fines, loss of driving privileges, or even jail time.

Because DUID laws are always changing, a DUI attorney will be able to take the time, sit down with you and review your case, and explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can help argue on your behalf to get you the best result possible.

New Jersey DUID Attorney Edward M. Janzekovich Can Explain and Fight for Your Rights

Because defending against charges of driving under the influence of drugs can be very complicated, it is important to get an experienced DUI/DWI attorney in any situation where you or someone you know is charged. If you are charged with driving under the influence of drugs or alcohol in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Driving Under the Influence of Drugs, Driving Under the Influence of Marijuana, Field Sobriety Tests

When Police Officers “Run Your License Plate” – Stops from Mobile Data Terminals

October 6, 2016 by

Man being pulled over by police

Police officers regularly run license plate checks – also known as “running your license plate” – for many reasons including to see if a vehicle is stolen, to find out more information about a vehicle or its driver after a stop, or to determine the ownership of the vehicle if it is abandoned.

In fact, officers have the right to check license plates randomly while on routine patrol for no specific reason whatsoever. In order to perform a vehicle license plate or registration check, police officers use special laptop computers called a mobile data terminal to discover information about people and motor vehicles quickly. Subsequently, these checks often lead to other evidence of criminal activity – including whether a vehicle is currently owned by a driver on the revoked or suspended driving list.

Mobile data terminals can provide detailed information about active arrest warrants, records from the New Jersey Motor Vehicle Commission, and alerts in the National Crime Information Center. Law enforcement consider mobile data terminals an invaluable crime-fighting tool for police agencies in New Jersey.

Are Random License Plate Checks Legal?

As a driver, you may be wondering if it is legal for a police officer to run your license plate if you have not done anything wrong or suspicious. In New York v. Class, the United States Supreme Court essentially held that people have no expectation of privacy in their license plate numbers, which are displayed for ease of view both day and night. Therefore, police officers do not need to act reasonably to select a license plate to research in a mobile data terminal – they can act based on suspicion or even randomly.

Limits on License Plate Checks and Information

There are limits on how a police officer can conduct a license plate check, however. First, in State v. Segars, the New Jersey Supreme Court made it clear that a police officer cannot run a license plate check for racial or ethnic reasons, meaning an officer cannot run your plates just because you are Black, White, Hispanic, Asian, or any other race. If you feel you have been targeted for a license plate check for a prohibited reason, it is extremely important to obtain an experienced attorney, because the defendant bears the burden of showing that a check was made with discriminatory intent.

Second, in the case of State v. Donis, the New Jersey Supreme Court established that a license plate check can only reveal basic information, such as the registration status of the vehicle and the license status of the owner of the vehicle – no other personal information can be revealed based on an initial search. If the officer then finds that the vehicle is unregistered, stolen, or otherwise prohibited from being on the roadway, then he or she may access personal information of the owner. The officer may also access personal information if the owner is unlicensed or on the revoked list.

How You can Be Charged for a Crime Based on a License Plate Check

If you are a driver on the suspended or revoked license list, it is important to recognize that a mobile data terminal will report that the license plate of a vehicle belongs to a driver on the revoked list or who is unlicensed. In State v. Donis, the New Jersey Supreme Court noted that this information, paired with information that the driver of the vehicle matched the owner of the vehicle, gives a police officer reasonable suspicion to pull a vehicle over and conduct further investigation.

Therefore, even if you are being completely careful, obeying every driving law, and performing no suspicious actions, you can still be pulled over if you have any vehicle restrictions associated with your license plate. This could lead to you being charged with driving with a revoked license, or to the police officer discovering that you are driving under the influence of alcohol or drugs.

The consequences of driving with a suspended license as well as drunk driving are very serious and can include fines, further loss of driving privileges, and even jail time.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Explain and Fight for Your Rights

If you or someone you know is pulled over based on a license plate check and you are charged with a crime, it is extremely important to contact an experienced DUI / DWI attorney who can explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can help argue on your behalf to get you the best result possible and can make all the difference. To speak with an experienced New Jersey DWI / DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Driver's License Suspension, Driving on a Revoked License, Driving on a Suspended License

Why Sentencing Can Be Complicated if You Are Convicted of Driving with a Revoked or Suspended License

September 27, 2016 by

Person being handcuffed

One of the harshest punishments involved with driving under the influence of alcohol or drugs is losing one’s driving privileges after a driver is convicted. When your license becomes revoked or suspended, you may lose your ability to drive to work and earn money to support your family —New Jersey does not allow for any temporary, provisional or “work” licenses. Suspension can also affect your ability to take your children to school, go to the supermarket, and do other things that seem essential. You may be on the revoked list for many reasons, and, regardless of the reason for your suspension, if your license has been revoked, the law says you cannot operate a motor vehicle in New Jersey during the period of your suspension for any reason.

Nevertheless, many people decide to drive without a valid license, every day. Thousands of drivers on the revoked list are pulled over for routine traffic stops every year in New Jersey, and if you are convicted of driving with a revoked license, you can face additional and severe consequences.

Unfortunately, sentencing issues for drivers who are convicted of driving on the revoked list presents many challenges, even for professionals who deal with DUI / DWI questions every day like judges and lawyers. There are three reasons why difficulties with this area of law exist. First, the statute that governs driving on the revoked list is somewhat unclear, and can require conflicting sentencing alternatives in certain situations. Second, judicial opinions written by the various Courts of the State of New Jersey have disagreed with each other in the past, and new laws sometimes make old cases inapplicable with a law change that happened after the case was decided. Finally, the law has failed to address how a driver should be sentenced if more than one of the sentencing enhancements written into the law applies.

Because this area of law is so complicated, it can become very important for you obtain an experienced DUI/DWI attorney to represent you, because a lawyer who understands these issues will be best prepared to get you the best result when your case goes to court.

An Example of Contradictory Mandates and Court Opinions

The driving with a suspended or revoked license law, N.J.S.A. 39:3-40, sets forth certain general punishments for anyone who is convicted of driving with a suspended license. There are also special provisions in the law that apply depending on how, why, or how many times your license has been suspended, and these may increase or decrease your punishment, or provide you with an alternative punishment such as paying a fine and pleading to a different charge completely.

In State v. Wrotny, which was decided in 1987, the Court determined that the special provisions included additional consequences that should be applied in addition to the general punishments. However, in State v. Rought (1987) and State v. Walsh (1989), the Court determined that the special provisions replaced the punishments set forth in the general provisions. Newer cases may agree or disagree with any of these cases, or may set forth a new rule entirely. For that reason, if you are charged with driving with a suspended license, it can be almost impossible to understand what is at stake if you are not experienced and completely familiar with DUI/DWI law.

An Example of Difficulty with Enhancements

If you are pulled over and found to be driving with a revoked license, you could also be facing jail time if convicted. How much jail time? There may not be a straight-forward answer.

For instance, if you are convicted of driving with a suspended license, and have had two prior convictions for driving on the revoked list, you would normally face a jail sentence of ten days and a set fine of $1000. However, certain circumstances can enhance your jail sentence if you were on the revoked list as a result of a drunk driving conviction that included an injury to another person that also happened to be within 1000 feet of a school, you could face multiple enhancements that increase your jail time to 60 days or 90 days, or more depending on if the jail sentences are added together or substituted for the original ten-day sentence. Likewise, your monetary fine could stay the same, be doubled, or tripled, or more depending on how the law is read.

The Need for an Experienced DWI / DUI Attorney

At the end of the day, if you are charged with driving with a suspended or revoked license, you are will be facing serious penalties no matter what. Nonetheless, the question of whether you lose your license for an additional 6 months or 30 months is extremely important, and the issues may not be something you can understand if you wait until you go to court to ask a prosecutor or judge for an explanation. Because this area of law is so confusing, an experienced drunk driving lawyer will be able to take the time, sit down with you and review your case, and explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can help argue on your behalf to get you the best result possible.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Explain and Fight for Your Rights

A charge for operating a motor vehicle with a revoked or suspended license can result in serious and complicated penalties that affect you and your loved ones. If you are charged with driving with a suspended or revoked license in New Jersey, an experienced DWI / DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Driver's License Suspension, Driving on a Revoked License, Driving on a Suspended License, DWI - DUI

Breathalyzer Regulation and When You Can Challenge a Breathalyzer Result

September 16, 2016 by

A police officer holds the breath test machine for a suspect to blow into with a police car in the background.

When you think of getting pulled over for suspected drunk driving, two of the things that will probably happen are 1) you will be asked to perform a field sobriety test, where police ask a driver to walk in a straight line, follow a flashlight with their eyes, or count while standing on one foot; and 2) you will be asked to take a “breathalyzer” test. In New Jersey, when you have been pulled over for any reason, and the officer has reasonable cause to believe that you were driving under the influence of alcohol or drugs, the breathalyzer test that measures your blood alcohol content (BAC) will be the best evidence that the prosecution will have against you if you are later charged for DUI / DWI.

Though many people still refer to it as a “breathalyzer,” New Jersey actually uses a process known as the Alcotest 7110 MK-IIIC to officially obtain BAC results. Regardless of the test used, the law requires that any blood alcohol test used against you be properly administered by the right people, and the evidence against you must be protected to make sure that it is not tampered with in any way.

If there is something wrong with the way a blood alcohol test is given to you, wrong with who gives you the test or checks the results, or wrong with the way the evidence is stored and produced at trial, an experienced DWI / DUI attorney may be able to challenge the results of the test and have them excluded at trial.

Road Side or Portable Breath Test

Many drivers do not realize that there are two potential breath tests that a police officer may use during a drunk driving investigation and arrest: the roadside breath test and the station test. The roadside breath test is also referred to as a portable breath test (PBT), and it is not as accurate as the station test. For that reason, the PBT is only used to get an estimate of BAC and used to establish probable cause that a station test is necessary. The results of the PBT are not admissible in court to prove drunk driving.

Regulation of Alcotest 7110 and other BAC Tests

In order to be considered legally valid and admissible in evidence, a BAC test must be performed on a device and through the use of procedures that are approved by the attorney general. Moreover, the person who performs the test must be properly trained and approved by the attorney general. Currently, the Alcotest 7110 has been approved by the attorney general, and, despite being challenged in the past, it has been upheld as scientifically reliable by the Supreme Court of New Jersey.

Challenging the Alcotest Results

Because the process is strictly regulated, an experienced attorney may still be able to raise several challenges to the BAC results, some of which are:

  • Improper certification of the Alcotest machine – meaning the machine was not properly inspected by a Breath Test Coordinator Instructor, who issues a Breath Testing Instrument Inspection Certificate.
  • Improper calibration of the Alcotest machine – meaning the results may have been inaccurate.
  • Improper qualification or certification of the officer operating the Alcotest machine – if the breath test operator was not certified or had an expired certification, the results of your breath test will be inadmissible.
  • Possible contamination of the Alcotest reading.
  • Improper adherence to the 20 minute observation mandate.

Because BAC readings are not always perfect, there may be ways to challenge breathalyzer test results and have them excluded. For that reason, it is especially important to always consult an experienced DWI / DUI lawyer if you are pulled over and charged with drunk driving. A DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help if You Are Charged with DUI / DWI

A DUI / DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI / DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Drunk Driving, DWI - DUI

Your Right to Discovery When Charged with a DUI / DWI

September 7, 2016 by

banner-3

In New Jersey, the law states that if you are charged with driving under the influence of drugs or alcohol, you are entitled to discovery in your case. That means that you are allowed to request all the evidence held by the prosecution that is relevant to your situation. In State v. Utsch, the New Jersey Superior Court Appellate Division ruled that a defendant is entitled to discovery in any case where he or she may be imprisoned or subject to serious consequences – and a DUI / DWI conviction is subject to severe penalties in the form of possible imprisonment, extensive fines, and almost assuredly will result in some period of license suspension.

How Do You Obtain Discovery?

Obtaining discovery is a relatively simple procedure, because the law provides for discovery in any DUI/DWI case. In order to receive the relevant evidence, all you need to do is make a proper written demand upon the prosecutor, and an experienced DUI attorney will know how to request discovery, who to request discovery from, and what discovery to request. Importantly, the law requires that the demand for discovery be made at the same time that the DWI attorney enters his or her appearance with the Court.

What Evidence Are You Allowed to Obtain in Discovery?

The Court Rules limit the scope of discovery in a drunk driving case to relevant materials, which means the evidence must reasonably be usable to assist in the defendant’s case. Relevant evidence includes:

  • Records of statements, confessions, or admissions made by the defendant;
  • Recorded grand jury proceedings;
  • Results or reports of any physical or mental examinations and of scientific tests or experiments made in connection with the matter;
  • Records of the defendant’s prior convictions;
  • Photographs or images related to the case;
  • Video or sound recordings related to the case;
  • Names, addresses, and statements of any witnesses or other persons who know relevant evidence or information;
  • Any police reports;

Furthermore, in the case of State v. Chun, the New Jersey Supreme Court outlined the discovery permitted in a DUI case involving an Alcotest or breathalyzer test, which includes:

  • New Standard Solution report of the most recent control test solution change, and the credentials of the operator who performed that change;
  • Certificate of Analysis for the .10 percent solution used in the Report;
  • Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;
  • Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;
  • Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;
  • Calibration Records;
  • Certificate of Analysis for the .04, .08, .10, and .16 percent solutions used in Calibration;
  • Draeger Safety Ertco-Hart Calibration Reports; and
  • Additional standard items of Alcotest discovery including the alcohol influence report and worksheet.

When Are You Entitled to Discovery?

The New Jersey Court Rules require a prosecutor to respond to a Discovery Request within 10 days of receiving the request, although this does not mean the prosecutor must deliver all the evidence in that time. Usually, the prosecutor will respond by informing the defense attorney that a request for the evidence has been made to the proper police records clerk for processing and transmission. The prosecutor is then responsible for providing complete discovery or for providing the defendant with a list of the evidence that is missing with an explanation of why it has not been handed over.

If discovery is not provided by the prosecutor, and an attempt is made to reach an agreement on discovery issues, a defendant may make a formal motion with the Court for relief, which can include a Court order that would prohibit the prosecution from using the undisclosed evidence later on. A defendant may also be able to make a motion to limit the time in which evidence must be handed over, and if it is not provided within the time limit, the case may be dismissed or thrown out. For this reason, it is especially important to always consult an experienced DWI / DUI lawyer if you are pulled over and charged with drunk driving. An experienced DUI attorney will know the best way to defend against the charges or have the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Knows What to Do If You Are Charged with DUI / DWI

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or a href=”/contact/”>contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, Field Sobriety Tests

Disclaimer : The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Law Office of Edward M. Janzekovich
540 Old Bridge Turnpike
South River, NJ 08882
Phone: 732-257-1137 Fax: 732-791-1437
E-mail: [email protected]

Copyright © 2015 Law Office of Edward M. Janzekovich.
All Rights Reserved.