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

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

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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

Whether You Are Functional or Coordinated During a Sobriety Test is Not a Defense Against a BAC Over 0.08%

August 31, 2016 by

Drunk driving breath test

Some people have the ability to have a few drinks and still be relatively well-coordinated – sometimes referred to as being a “functional drunk.” Such individuals may even be proud of the fact that they can be drunk and still perform regular activities. This ability may even extend to the person’s performance on a field sobriety test, if he or she is pulled over. Regardless of whether or not a person is completely successful on a field sobriety test, however, his or her performance will not be admissible to rebut a blood alcohol content (BAC) reading of over .08%. For that reason, it is important that you never drive drunk, even if you think you are okay and it won’t affect your driving at all.

Field Sobriety Test and Video Evidence

If you are pulled over for and suspected of drunk driving in New Jersey, one of the things a police officer will probably do is ask you to perform a series of movements that make up a field sobriety test – including walking in a straight line, following a flashlight with your eyes, holding out your arms and touching your nose with one finger, or counting while standing on one foot. It is also very likely that the officer will make a video recording of your performance on this test.

Because you can be on video every time that you are pulled over, it is important to remain polite and compliant, in case the video is later viewed by a judge or admitted as evidence in a trial. One of the ways the state may attempt to prove that you were driving drunk is by presenting evidence that you failed your field sobriety tests. Therefore, your performance on any field sobriety test, as well as your ability to speak to the police officer and answer questions, can help in your defense against a DUI/DWI conviction.

Field Sobriety Test Performance Does Not Rebut a BAC of 0.08% or Greater

At the same time, in the case of State v. Tischio, the Court concluded that a breathalyzer test result of 0.08% or greater, within a reasonably period of time after the operation of a vehicle or arrest, is conclusive proof of guilt. This means that a properly taken BAC of 0.08% or greater is a per se violation of New Jersey’s law against drunk driving, and this cannot be rebutted through other evidence.

Therefore, even if you perform really well on a field sobriety test – including if you manage to keep your balance when standing on one foot, walk in a straight line perfectly, and otherwise have no trouble speaking with a police officer and answering questions – you can still be convicted of a DWI/DUI. This is because the state can prove that you were operating a vehicle under the influence of alcohol two different ways – through BAC evidence and through evidence of your inability to pass a field sobriety test. Any evidence of how you performed on a field sobriety test cannot be admitted to dispute the BAC reading, which can only be challenged through other defenses that are specific to how and when the breathalyzer or BAC test was performed.

At the same time, a BAC reading is not always perfect. There may be ways to challenge breathalyzer test results and have them excluded, at which point your performance on a field sobriety test can become very important. 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. An DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

Contact New Jersey Drunk Driving Attorney Edward M. Janzekovich

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 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: Criminal Law, Drunk Driving, DWI - DUI, Field Sobriety Tests

Driving Under the Influence of Drugs, Including Cocaine, Heroin, Meth, and Other Substances in New Jersey

August 22, 2016 by

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

Under New Jersey law, N.J.S.A. 39:4–50(a), you cannot drive a motor vehicle if you are “under the influence… of a narcotic, hallucinogenic or habit-producing drug.” New Jersey courts have since expanded this law to include any substance that has produced a narcotic effect – and the law does not even require that the specific drug be identified. 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 driving under the influence of drugs, also known as DUID.

If you go to trial for a DUI/DWI charge, the State must prove beyond a reasonable doubt that you were operating a vehicle under the influence of some drug or mind altering substance. When it comes to alcohol, the standard breathalyzer test and field sobriety tests used to demonstrate that a person was driving drunk are well known. When it comes to DUID for drugs like cocaine, however, a case can be somewhat more complicated. The State may require expert testimony to establish that there were drugs in your system and that these drugs actually made you unable to safely operate your vehicle. For that reason, it is especially important to consult an experienced DWI/DUI lawyer, who will be able to identify if the State’s investigation into your charges was proper and who may be able to have your charges either dismissed or downgraded by discrediting this evidence.

How Does the State Prove Narcotic Use?

In a prosecution for driving while under the influence of drugs, the State will use observations and testimony to establish that a person was using drugs at the time he or she was arrested, as well as to show that the person was intoxicated. For instance, if a police officer suspects a driver of being under the influence of narcotics, the first thing he or she will probably do is request that the driver undergo a blood or urine test. This evidence would then be admitted at trial through admission of the person who performed the analysis or an independent reviewer. Barring exigent circumstances, New Jersey law does not require that a driver undergo a blood or urine test. The driver does have the right to refuse to participate in testing. To obtain a blood or urine sample, the police MUST either (1) gain the drivers voluntary informed consent (meaning the driver has the right to refuse) or (2) the police obtain a search warrant to force a driver to give blood or urine for testing (if a warrant is issued, you must comply).

The State will also need to present evidence that the driver showed signs of intoxication. This is because a defendant can argue that any traces of narcotics in his blood or urine were left over from some other time and did not impair his or her ability to drive. Such evidence can be observed from speaking to a driver and by asking a driver to perform a field sobriety test – things like walking in a straight line, standing on one foot, or using your eyes to follow a light. Again, the State may need to present this evidence through an expert, such as a police officer with sufficient training to identify narcotic influence. In the recent case of State v. Beyer, the New Jersey Appellate Division affirmed the DUID laws and procedures, when it held that a driver could be convicted of driving under the influence of cocaine based on the fact that the driver was found asleep at the wheel of a car with its engine running, the driver admitted to using cocaine earlier, urinalysis showed the presence of cocaine, and the driver showed signs of falling, swaying, and staggering during the field sobriety test.

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. An experienced DWI/DUI attorney will be able to help present the best defense possible or have the charges against you dropped completely.

New Jersey DUID Attorney Edward M. Janzekovich Can help if You Are Charged with Driving Under the Influence of Drugs, Including Molly, Ecstasy, Marijuana, or Other Illegal Substances

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: Driving Under the Influence of Drugs, Driving Under the Influence of Marijuana, Drugged Driving, Drunk Driving, DWI - DUI, Uncategorized

New Jersey DWI Lawyer Discusses When You Can Get a New Trial in Your Drunk Driving Case

August 16, 2016 by

Man Being Pulled Over by the Police

The criminal justice system in New Jersey and in the United States is used to decide when defendants are guilty or innocent of crimes that they are charged with, but guilt and innocence is not the only thing the court is concerned with. Society wins not only when the guilty are convicted but when criminal trials are fair. For that reason, if you or someone you know is found guilty of driving under the influence of alcohol of drugs, you may be entitled to a new trial if your attorney can show that the case brought against you was improper or unfair.

In Brady v. Maryland, the United States Supreme Court held that when a prosecutor withholds exculpatory evidence, which is evidence that could possibly be used to show that a defendant was not guilty or could be used to lessen a defendant’s sentence, the court may be required to take corrective measures. The New Jersey Supreme and Appellate Courts have applied Brady for the benefit of New Jersey defendants charged with DWI / DUI in numerous cases, most recently citing the rule in State v. Stein.

In Stein, the New Jersey Supreme Court actually noted that New Jersey law is even more expansive because New Jersey Court Rule 7:7-7 requires more discovery be provided to the defendant than in Brady. Under the rule, state prosecutors must release all evidence or information that is relevant to a legitimate defense. In order to establish a Brady violation in drunk driving cases, the defendant must prove the following three facts:

  • The prosecution failed to provide evidence to the defense in violation of Rule 7:7-7;
  • The evidence would have been something that is good for or benefits the defendant;
  • The evidence is material, meaning the defendant can show that there is a good chance the defendant could have used the evidence to change the result of the trial or of a plea agreement.

Exculpatory evidence may include more than just things that directly relate to the case, it can also include evidence that has to do with the credibility of a witness, meaning evidence that makes a witness more or less believable. A failure by the State to provide exculpatory evidence to the defense can be considered a denial of due process and entitle a defendant to a new trial.

If a defendant requests a new trial based on a Brady violation, the court does not look at just one piece of evidence to determine if that would have affected the trial. Instead, the court will look at all of the evidence that was suppressed, and the court will decide if the decision to plead guilty or the results of the trial would have been different if the defendant had the chance to present the evidence.

When it comes to drunk driving charges, a Brady violation usually has to do with evidence that may affect a defendant’s blood alcohol level or may be used to exclude the blood alcohol test results. For example, if the state fails to provide evidence that the breathalyzer machine used on the defendant was improperly maintained or was likely to produce inaccurate readings, this can result in a new trial. Similarly, suppressed video evidence may form the basis of a Brady violation.

Importantly, in New Jersey, you lose this right if you forget to ask for the evidence or fail to object when you do not receive that evidence. For instance, in Stein, the Court held that the defendant may have been entitled to the names of certain witnesses that were used against him, but he forgot to object and lost his chance to request a new trial based on the government’s failure. For that reason, it is important to get an experienced drunk driving attorney in any situation where you or someone you know is charged with DUI / DWI. An experienced DUI attorney will know what evidence to ask for from the state and will be best suited to present the best defense possible or have the charges against you dropped completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can help if You Deserve a New Trial in a DUI or DWI Case

A DUI or 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: Driving Under the Influence of Drugs, Driving Under the Influence of Marijuana, Drunk Driving, DWI - DUI

Reasonable Suspicion is Required to Administer a Field Sobriety Test

August 3, 2016 by

Police officer doing a field sobriety test

If you are pulled over by a police officer in New Jersey, and the officer thinks that you have been driving under the influence of alcohol or drugs, one of the things he or she may ask that you do is perform a series of movements that make up a field sobriety test – including walking in a straight line, following a pen with your eyes, holding out your arms and touching your nose with one finger, or counting while standing on one foot. This may come before or in addition to a breathalyzer test if the officer believes you are intoxicated. If you are later charged with a DUI / DWI, your ability to perform the field sobriety test may be used as evidence in a case against you. There is no statutory penalty for refusing to perform a field sobriety test in New Jersey, but if you do refuse, a judge may consider your refusal to mean you were too drunk to do them.

Nonetheless, a police officer does not have an unlimited power to ask anyone and everyone to perform a field sobriety test. Numerous New Jersey court cases have said that a police officer may only ask you to perform a field sobriety test if he or she has a “reasonable, articulable suspicion” that you are driving drunk or under the influence of some other substance. If the State cannot prove by a preponderance of evidence that the officer had this “reasonable and articulable suspicion” at the time the field sobriety test was performed, then your attorney may make a Motion to Suppress before the court to have the evidence excluded. This means that the prosecutor will not be allowed to use this evidence against you to prove the charges of driving under the influence of alcohol or drugs, and can ultimately prevent the State from proving its case.

There is no specific definition of a “reasonable and articulable suspicion” under the law, but the standard is based on the police officer’s knowledge, experience, observations, and reasonable inferences. For example, a reasonable suspicion includes if the officer smells alcohol coming from the car or the driver’s breath, if the driver had bloodshot or watery eyes, or if the driver’s speech was slurred.

In the recent case of State v. Dunn, the New Jersey Appellate Division found that a driver’s statements regarding drinks she had had earlier in the day could create a reasonable, articulable suspicion that the driver was operating the vehicle while intoxicated, even if there were no other signs of DUI / DWI – no detectable odor of alcohol, slurred speech, or bloodshot eyes. In Dunn, the police officer did not ask the driver if she had been drinking, but she volunteered that she had had three beers earlier in the day. This was enough for the officer to ask the defendant to step out of the car, at which time he smelled the odor of alcohol.

It is important to note that a police officer must first have a legitimate reason to make a motor vehicle stop before pulling a driver over. Furthermore, if the reason the driver was pulled over was for a minor violation, like a traffic offense, the officer must have a reasonable, articulable suspicion that is unrelated to the traffic offense before the officer can administer a field sobriety test to see if the driver was operating the vehicle under the influence of drugs or alcohol.

We know from Dunn, that if the driver admits to drinking at least three beers earlier in the day, reasonable, articulable suspicion is created for an officer to administer field sobriety testing.

But what if you admitted to having only one drink or two, would that rise to the same level? As a result of the Dunn decision, I would say yes, that any admission to drinking any amount of alcohol prior to operating a motor vehicle would probably create reasonable, articulable suspicion that the operator may be intoxicated and allow the officer to conduct field sobriety tests.

In New Jersey, the ambiguous nature of the law means that it is important to obtain an experienced drunk driving attorney in any situation where you or someone you know is charged with DUI / DWI. The facts of every case are different and can influence how the case is tried. An experienced DUI attorney will be best suited to present the best defense possible or have the charges against you dropped completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help Review the Evidence Against You in a DUI / DWI Case

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, DWI & DUI Checkpoints

Consequences of a First or Second DUI for Commercial Drivers

June 13, 2016 by

Man being given sobriety test

If you or someone you know is a commercial driver in New Jersey, the potential consequences of facing a first or second drunk driving charge cannot be understated. When driving is your livelihood, and possibly the sole source of income for you and your family, the penalties for drunk driving even one time can be devastating. Many commercial drivers don’t realize that they may be facing additional penalties for even their first offense. If you are charged with DUI, what are you actually facing?

First Offense

Anyone facing a DUI charge in New Jersey is justifiably concerned about the possible effects of a conviction. But for commercial drivers in our state specifically, the consequences are enhanced. A commercial driver in New Jersey who is found guilty of operating a commercial vehicle while under the influence is subject to many consequences. Those include notification to the Commercial Driver License Information System, suspension of his/her commercial driver license for between 1 to 3 years, as well as fines and possible jail time. There is no set fine for a first violation, however under N.J.S.A. 39:3-86, the court may impose a fine of anywhere between $25 to $500. Additionally, a $33 court fee may be imposed, as well as a $6 surcharge and $50 assessment to the Victims of Crime Compensation Board. Finally, although the laws do not specifically state a jail term for a first offense, it is possible for the court to impose a sentence of up to 30 days in jail if the offense involves a commercial vehicle

Additionally, even if this is your first offense, but you have previously been convicted of certain other crimes, you can be subject to a mandatory lifetime suspension of your commercial driving privileges. If you are a full-time driver in shipping, transport, or other industries, this means you could become deprived of your sole source income and be denied employment in your field of choice.

Previous convictions for the following crimes would subject you to the lifetime suspension:

  • Operating a commercial vehicle while on the revoked list
  • Leaving the scene of a motor vehicle accident as an operator driving a commercial vehicle
  • Using a commercial vehicle in the commission of a crime
  • Refusal to submit to a breath test

Also, it does not matter when these previous convictions happened. A court may consider it even if it was 5, 10, 30 years ago. Therefore, if you ever find yourself facing a DUI charge while operating a commercial vehicle, you should consider retaining an attorney and carefully review your past and advise your attorney of any previous criminal history you may have. It is also important to note that if you happen to be transporting any hazardous material or even just are driving a vehicle that simply displays a hazardous material placard, your commercial driver license must be suspended for three years under New Jersey state law.

Second Offense – mandatory lifetime loss of CDL

If you have previously been convicted of a DUI while operating a commercial vehicle, you know the serious consequences that you can face. Although the monetary penalties are the same for second-time offenders who are found guilty of operating a commercial vehicle while under the influence, there are a few key differences when it comes to facing a second offense. First, second offender operating a commercial vehicle are subject to a jail term of between 2 to 90 days. Second, you will lose your commercial driving privileges for life. Third, step-down provisions that New Jersey provides for some subsequent DUI offenders DOES NOT APPLY to suspensions of commercial driving privileges. Notably, however, New Jersey law does allow for a possible reduction of a lifetime suspension of your commercial driver’s license to 10 years. This power lies with the Chief Administrator of the Motor Vehicle Commission and they have certain guidelines regarding when a reduction is appropriate. Therefore, it is important to discuss all of these possibilities with an experienced DUI attorney, because every situation and case is different.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help Commercial Drivers Facing DUI Charges

Defending against a DWI charge, especially one involving a commercial driver, can involve many potential penalties. If you are charged with drunk driving or driving under the influence in New Jersey, knowing what your rights are 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 in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Filed Under: Drunk Driving, DWI - DUI, Nre Jersey Drunk Driving Penalties

Defendants Facing DWI Charges Are Not Entitled to Trial by Jury

June 6, 2016 by

Woman being pulled over by police

If you are charged with a crime, do you always have the right to a trial by jury? When it comes to drunk driving cases in New Jersey, the answer is “no.” On May 12, 2016, the New Jersey Supreme Court found in State v. Denelsbeck that defendants facing their third or subsequent drunk driving conviction are not entitled to a jury trial, and are subject to a mandatory six months in jail.

The reason is because New Jersey does not consider DWI a “crime.” Instead, the law treats it as a traffic violation, meaning that the punishments are not serious enough. Courts in New Jersey have long found that defendants are not entitled to a trial by jury on “petty” offenses but are only entitled to them when consequences are more severe.

How “Serious” are the Consequences?

In reaching its decision, the New Jersey Supreme Court found that the punishments for repeat DWI offenders are not “sufficiently serious” to trigger the constitutional right to a jury trial. However, the Court admitted that the law does require a lot of fines, fees, and penalties, including mandatory jail time, for repeat DUI offenders, and the amount of punishment has increased over time.

Specifically, under the current laws, if you have already been convicted of two prior DWI’s and you are charged with drunk driving again, you face up to 180 days of jail time, thousands of dollars in fines, forced enrollment in an alcohol inpatient rehabilitation program, and a ten-year loss of your driver’s license.

If convicted, you would also be required to install an ignition interlock device on your vehicle during the period of suspension and AFTER you get your license back. After your driving privileges are returned, the device must remain on the vehicle for six months to one year on a first offense or one to three years on a subsequent offence. An ignition interlock device works with your vehicle’s ignition system, requiring you to provide a breath sample before your car will start. If alcohol is detected, your vehicle will not start until a passing sample has been provided. If you are convicted for drunk driving even once, you could be required to install an ignition interlock on your vehicle at your own expense – and costs for an ignition interlock device are estimated at $90-150 to install and about $70-90 per month for monitoring and calibration./p>

However, the Supreme Court Warns Punishment Cannot Be Any Harsher

In deciding Denelsbeck, the Supreme Court warned that if any additional DUI penalties are added by the state legislature, the Supreme Court would change its mind and decide that defendants charged with driving under the influence of drugs or alcohol would have the right to have their cases heard by a jury of their peers. The Court said our New Jersey lawmakers have “reached the outer limit in subjecting third and subsequent DWI offenders to confinement without a jury trial.” They noted that facing a mandatory term of six months’ confinement for a third or subsequent drunk driving conviction is the constitutional maximum – meaning 180 days of jail time is the maximum punishment allowed before a defendant has the legal right to a jury trial. The Court specifically stated that the offense is currently teetering between being a petty offense and a serious crime because of this punishment.

Jury Trials, and the Alternative – Bench Trials

The Denelsbeck case was decided 5-1. Justice Barry Albin disagreed with the rest of the Supreme Court and wrote in his dissent that New Jersey is “far out of the mainstream” as to its position on Trial by Jury in DUI cases. He pointed out that 40 states give DWI defendants a jury trial on their first offense. The New Jersey State Bar Association and the New Jersey chapter of the American Civil Liberties Union helped to argue that New Jersey should join the other 40 states in trying DWI cases in front of juries, while County prosecutors and the state Attorney General’s Office argued that universal jury trials for DUI offenders would overburden the court system.

In the meantime, because jury trials are not a right, if you are charged with drunk driving, you may be required to present your case in what is called a bench trial. In a bench trial, your entire case is heard and decided by a judge without the help of a jury. Having an attorney to represent you in a bench trial is especially important, because the judge will get to decide both issues of law and evidence as well as make the ultimate decision in the case regarding whether you are guilty or innocent.

New Jersey DWI/ DUI Lawyer Edward M. Janzekovich Will Fight for Your Rights if You Are Charged

Defending against a DUI charge is complicated. If you are charged with drunk driving or driving under the influence in New Jersey, knowing what your rights are 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 in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

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

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