EMJanzekovich

Implied Consent

July 24, 2015 by EMJanzekovich

Most people are aware that if they are stopped by law enforcement and there is reasonable suspicion that they are driving while intoxicated, the driver is required to provide a sample to determine if they are under the influence, but a sample of what? The law varies from state to state. For instance:

The Implied Consent Law in New Jersey is different than that of Rhode Island. In Rhode Island, Implied Consent means that any person who drives a motor vehicle in Rhode Island has given consent to Chemical Test (Breath-Blood-Urine – arresting officers choice apparently) to determine the amount of alcohol/drugs, if any, in your system after you have been arrested for suspected driving while intoxicated (DWI). Refusing to provide that sample is an additional charge carrying additional license suspensions and fines. (source – RI DMV website)

The New Jersey Implied Consent Law that states that all persons operating a motor vehicle on New Jersey roadways has agreed to submit to a Breath Test following an arrest for suspected drinking and driving. In addition to the original underlying penalties of the driving while intoxicated offense, failing to provide a breath sample will result in an additional charge carrying an additional period of suspension and other penalties.

However, New Jersey’s implied consent law does not currently mandate that you submit to a blood test or urine test. If taken to the hospital as a result of an investigation, such as an accident, you most likely did not perform standardized field sobriety tests. If you are suspected of being under the influence of an alcohol or drug, you will be asked for your consent to voluntarily provide a sample of your blood or urine to test. This is because although the breath test machine used in New Jersey, the Alcotest 7110c, is designed to be mobile and transportable to the scene or hospital, it is not the practice in New Jersey. So to gather evidence of intoxication to be used against you, your blood or urine will be required.

If you believe you have alcohol or drugs in your system, or if you just do not want to, you should refuse to voluntarily give consent for the collection of your blood or urine. If a DWI charge is to be pursued against you, a judge would have to issue a warrant (Fourth Amendment protections against unreasonable searches and seizures – barring exigent circumstances) for non-consensual blood testing to collect a sample. However, if a warrant is obtained, you are legally required to provide the type of sample described in the warrant and reasonable force may be used to collect that sample if necessary. Refusing to provide a sample after a warrant is issued will result in an additional charge(s) carrying additional license suspensions and penalties, which may also expose you to potential criminal charges.

So, according to the Rhode Island Division of Motor Vehicle website, a New Jersey resident on vacation, visiting a relative or just driving through Rhode Island that is stopped for a suspected DWI is required to submit to chemical testing. Chemical testing of your breath, blood or urine, without the need of a warrant, even though as a New Jersey license holder, your implied consent requirements are for only breath samples.

* Disclaimer – Edward Janzekovich is a licensed attorney in the State of New Jersey and not in Rhode Island. The information provided is to contrast implied consent laws between NJ and RI. Information is obtained directly from the Rhode Island DMV website and this is not to be interpreted as providing Rhode Island legal advice.

Last Call for Alcohol

June 30, 2015 by EMJanzekovich

Last Call for Alcohol – the drink that may get you arrested.
Over the course of my careers as police lieutenant and an attorney, I have spoken and dealt with hundreds of people charged with DWI. A common theme is the individual is getting ready to leave the bar or friends house to drive home and the “last call” is made and that individual has just one more drink. They believe they feel fine, and can have one more before they hit the road. The problem is that by the time that last drink is absorbed into their system, they are now driving down the road. They now feel the effect of the alcohol and catch themselves weaving, making driving mistakes they would never normally make.

New Jersey does not allow what is referred to as a “Safe Haven” for driving while intoxicated, meaning that if you are driving home and you start to feel the effects of the alcohol, you can pull off to the side of the road and sleep it off or call for a sober driver to come get you. In New Jersey, once you demonstrate intent to operate a motor vehicle, you cannot reverse it by pulling into a rest stop or the side of the road. If an officer comes in contact with you within a reasonable period of time from when you were actually operating the vehicle and they can proof it, you can be charged with DWI if you demonstrate signs of intoxication.

As you can see from my prior post containing the blood alcohol charts for men and women, 1 more drink can quickly move you into the Per Se category (.08% BAC or higher) of driving while intoxicated and definitely place you into the Buzzed driver group. Both of which expose you to the possibility of being arrested for DWI and/or injuring others including yourself.

Many of those people I have encountered over my careers regretted having that last call drink. Food for thought.

Filed Under: DWI - DUI

New Jersey Has Two Ways to be Convicted of DWI – DUI

June 17, 2015 by EMJanzekovich

In New Jersey there are two ways to be convicted of driving while intoxicated. The first is the Per Se law. It is illegal to drink and drive a vehicle with a BAC of .08% or more (or operating a commercial vehicle with a .04% BAC or more). Even if you believe that level of alcohol did not impair you, you are Per Se driving while intoxicated. However, if your BAC is lower than .08%, you can still be charged with DWI if the amount of alcohol you consumed impaired your ability to operate your vehicle. This is commonly referred to as “Buzzed Driving” and is prosecuted as an Observation Case.

In an observation case, the investigating officer testifies in front of the judge about his/her observations. Basically – (1) the reason the vehicle was stopped – traffic violation, motorist aid, accident, and such, (2) initial interactions – conversation with driver, can’t locate credentials, disoriented, slow lethargic hand movements, odor of alcohol, admission of drinking, bloodshot watery eyes, fumbling, dropping documents, slurred speech and such, and then (3) results of standardized field sobriety tests performed. At this point the judge evaluates the testimony of the officer and defense witnesses to determine if he/she (judge) thinks the person was intoxicated at the time the vehicle was operated. If the judge thinks so, guilty of DWI.

Filed Under: DWI - DUI

DWI With Children In Car

June 9, 2015 by EMJanzekovich

Besides the DWI, possession of marijuana, marijuana in a motor vehicle, and the other slew of charges for her outrageous behavior, if it happened in New Jersey, she would probably be charged additionally with Endangering the Welfare of Children N.J.S.A. 2C:24-4(a)(2) because actions of a parent or guardian that expose minors to potential harm that could make them an abused or neglected child are, depending on the circumstances guilty of a 2nd or 3rd degree crime, and Driving While Intoxicated with a Minor Passenger N.J.S.A. 39:4-50.15(c) – because a parent or guardian who is convicted of DWI and who, at the time of the violation, has a minor as a passenger in the motor vehicle is guilty of a disorderly persons offense. The respective statutes describe a Minor for N.J.S.A. 39:4-50.15(c) as anyone who is 17 years of age or younger and a Child for N.J.S.A. 2C:24-4(a)(2) as any person under 18 years of age.

Police: Woman street racing with child on-board arrested for DUI

Taylor Viydo, KREM 9:23 p.m. MDT June 8, 2015

Shariah Whitney(Photo: KREM)

POST FALLS, Idaho – The Kootenai County Sheriff’s Office is investigating a woman who was driving while intoxicated with a child in the car on Sunday.

According to police, Shariah L. Whitney was street racing with another vehicle at Spokane Street and West Riverview Drive on Sunday. The other vehicle she was racing lost control and stuck a concrete island, before striking a parked car.

When police arrived, they arrested the Spokane Valley resident for driving under the influence. Officials said Whitney also had her 5-year-old daughter in the car when this happened. Court records showed a 15-year-old was in the vehicle, too.

Police have not said if Whitney will face additional charges for having a child in the car with her.

On Monday, the judge set Whitney’s bond at $3,600. Court records stated that her blood alcohol content registered at more than .20. Police wrote that Whitney also had marijuana with her at the time of the crash.

Filed Under: Current Events, DWI - DUI

Actor Sam Shepard was arrested for DWI

June 6, 2015 by EMJanzekovich

Actor Sam Shepard was arrested for DWI in New Mexico on May 25, 2015 after the police were investigating a possible drunk driver call. According to the reports, Mr. Shepard exhibited outward signs of intoxication of bloodshot watery eyes , and an odor of alcohol (presumably on his breath) and he admitted to consuming “roughly” 2 tequila type drinks. He refused to give a breath sample and failed the field sobriety tests. Mr. Shepard was booked into the Santa Fe County Jail on a charge of aggravated driving while intoxicated

In New Jersey, a typical DWI conviction is a traffic violation, and not a criminal offense. However, the penalties associated with it are severe. If found guilty of a DUI/DWI in New Jersey, you will be exposed to a loss of license (90 days to 10 years, depending on your history), be required to attend counseling classes (IDRC, minimum of 12 hours and a lot longer if they determine you need more counseling), possible jail up to 6 months depending on your history, community service, monetary fines, State surcharges, possible interlock device in your car, and insurance points. If in a school zone, some of the penalties are doubled – a school zone is any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property.

A onetime lapse of judgment can be devastating. That is just from the State alone. Most people require a drivers license to either work, attend school, or perform simple family tasks on a daily basis.

How you perform on the standardized field sobriety tests you are asked to complete will most times be the decision point of whether or not you are arrested for DWI. When evaluating your performance post arrest, many factors are considered, some common ones are: The area you were performing the tests – lighting, flat level surface, free of debris, foot wear, existing medical conditions; the instructions and demonstrations provided so that you could understand what is actually being asked of you to do, the level of training of persons involved, and was your performance correctly interpreted to the Standard.

In New Jersey, you are required to give a breath sample if the police have reasonable suspicion that you were drinking and driving. Refusing to give that sample will lead to additional charges and penalties.

Sam Shepard article:

http://www.nbcnews.com/pop-culture/pop-culture-news/sam-shepard-playwright-actor-arrested-drunken-driving-charge-n365036

Filed Under: Current Events, DWI - DUI

Police Not Liable For Detaining Reportedly Suicidal Woman

June 5, 2015 by EMJanzekovich

Police officers are not liable for the involuntary detention of a woman whose mother reported her to be suicidal, since the law of the Third Circuit has not established whether police have probable cause to detain someone based on a relative’s tip that they may kill themselves, a federal judge has ruled.

NJ Law Journal breaking news June 5, 2015

Filed Under: Current Events

Drunk Driving Discovery

October 26, 2012 by EMJanzekovich

CRIMINAL LAW AND PROCEDURE — DISCOVERY — DRUNK DRIVING

14-2-8052 State v. Carrero, App. Div. (Sabatino, J.A.D.) (28 pp.) We review discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered. In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required 20 minutes before testing. We reverse the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection. We conclude that Carrero’s request is insufficient in light of the Supreme Court’s binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008), that the Alcotest is designed in a manner that is “well shielded from the impact of any potential RFI,” and also in light of the state’s countervailing security interests disfavoring routine civilian access to the interior of a police station.

We conclude that Baluski’s request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the 20 pretesting minutes required by Chun, 194 N.J. at 79, and also in light of the state’s countervailing security interests.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, Drunk Driving, DWI - DUI Tagged With: drinking and driving, dui attorney, dwi attorney, new jersey drunk driving attorney

AUTOMOBILES — DRUNK DRIVING — LICENSE SUSPENSION

October 25, 2012 by EMJanzekovich

05-2-8058 Foehner v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (5 pp.) Appellant Robert Foehner appeals from the Motor Vehicle Commission’s (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver’s license due to a fourth conviction for an alcohol-related offense. The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona.

On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension. The appellate panel disagrees and affirms the suspension. Appellant does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice. Since no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, Driver's License Suspension, Drunk Driving Tagged With: drinking and driving, drinking driving new jersey, driver's license suspension, drunk driving, dui attorney, dwi attorney, new jersey drunk driving attorney

POST – CONVICTION RELIEF

September 21, 2012 by EMJanzekovich

CRIMINAL LAW AND PROCEDURE — POST-CONVICTION RELIEF

14-2-7407 State v. Hall, App. Div. (per curiam) (10 pp.) Defendant appeals from the denial of his petition for post-conviction relief . On September 25, 2000, pursuant to a plea agreement, defendant, a Jamaican national, pled guilty to two counts of first-degree armed robbery. On June 8, 2010, defendant filed a PCR petition, alleging counsel was ineffective because he failed to warn defendant about the deportation consequences of his guilty plea. The PCR judge denied the PCR request without a hearing, concluding defendant’s petition was time-barred.The PCR judge did not consider the merits of defendant’s request. On appeal, defendant argues his PCR request was not time-barred because the immigration consequences of his plea were not revealed until his 2009 release from prison, followed by the effectuation of the immigration detainer. He then consulted with counsel who advised he was subject to deportation based upon his prior guilty plea.

The record demonstrates that when the five-year filing deadline elapsed, defendant had no reason to suspect his attorney had potentially rendered ineffective assistance by failing to advise him of the deportation consequences of his guilty plea. Not until defendant was taken into custody by ICE in 2009, upon release from state custody, did he realize the consequences of his guilty plea and the possible deficiencies of his attorney’s performance. Concluding these are exceptional circumstances warranting a delay in the filing of the PCR petition, the appellate panel reverses and remands for an evidentiary hearing. \

Source – NJSBA Daily Briefing

Filed Under: Court Case Verdicts, Criminal Law Tagged With: court case verdicts, criminal attorney new jersey, criminal law

DRUNK DRIVING — SPEEDY TRIAL

September 21, 2012 by EMJanzekovich

CRIMINAL LAW & PROCEDURE — DRUNK DRIVING — SPEEDY TRIAL

14-2-7618 State v. Vanderkooy, App. Div. (18 pp.) Defendant challenges his convictions for driving while intoxicated, refusal to take a breathalyzer test, and speeding in the Law Division at a trial de novo based on the record developed in the municipal court.

The panel affirms, finding that:

defendant was not denied his right to a speedy trial where both parties are responsible for various delays, whether due to scheduling conflicts, discovery delays, or requesting a Frye hearing, the amount of time elapsed is mostly due to the Frye hearing, and defendant did not prove prejudice sufficient to warrant a speedy trial violation;
defendant was not denied the requested discovery regarding the radar gun or the State’s radar gun expert;
the State presented sufficient evidence of the scientific reliability of the Stalker Dual SL radar device used by police;
there was sufficient evidence in the record of the operator’s training and testing of the radar device to admit the radar reading into evidence;
defendant cannot establish that the municipal court judge or trial judge erred in finding the police officer’s testimony credible; and
based on the officer’s observations and defendant’s conduct, it is clear that probable cause to arrest existed and the State established beyond a reasonable doubt that he is guilty of DWI.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, DWI - DUI Tagged With: court case verdicts, criminal attorney new jersey, criminal law, drinking and driving, drunk driving, dui, dwi, dwi attorney, new jersey dui attorney

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