New Jersey DUI Lawyer – Why You Can’t Expunge a DWI / DUI Conviction in New Jersey and What That Means When Applying for a New Job

February 14, 2017 by

New-Jersey-Drunk-DrivingThe law in New Jersey is different than 48 other states in that it treats a DWI/DUI as a motor vehicle offense instead of a criminal violation. As such, driving under the influence of drugs or alcohol is recorded on a driver’s Department of Motor Vehicle (DMV) records, aka a driver’s abstract.

Moreover, in New Jersey, expungements are limited to only criminal offenses, and, since DUI/ DWIs in New Jersey are traffic offenses and not criminal offenses, a conviction for drunk driving can never be expunged from someone’s driving record. Only criminal arrests or convictions that fall under the 2C code can be expunged in New Jersey. However, this rule is not entirely negative. The rule does result in the benefit of the DWI/DUI not showing on an individual’s criminal history.

Note however, this doesn’t mean convicted offenders won’t face criminal penalties. The law considers driving under the influence as a pseudo-crime or quasi crime, and the consequences can be severe, including fines and loss of driving privileges. Prison time is also possible for a DWI/DUI, and it is mandatory when a driver commits a second or third offense. For example, by New Jersey law, third-time offenders are sentenced to a prison term of 180 days or more.

DWI/DUI and its Effect on Employment Applications

Since drunk driving is not considered a criminal offense under the New Jersey criminal code, drivers who have been convicted and are applying for jobs after their conviction do not have to answer, “yes,” if the employer asks if they have ever been convicted of a crime. Sometimes, however, employers may ask if a person has been convicted of anything but a minor traffic offense. DWI convictions are considered major traffic offenses, so in those cases, an applicant with a conviction for driving under the influence of alcohol or drugs should answer truthfully that they do have a history of more than just minor traffic offenses.

Many times, potential employers conduct background checks as part of their hiring process. Such background checks usually include an applicant’s driving record (which will show the drunk driving conviction), criminal record, court records and incarceration records. New Jersey does not report DUIs to the National Crime Information Center (NCIC) — a common criminal history database that employers check – so the DUI/DWI will not show on the NCIC check.

Exceptions – When You Must Disclose Your DWI/DUI Conviction to a Potential Employer or Other Reviewer

Title VII of the Civil Rights Act of 1964 prohibits employers across the United States from denying employment to individuals with a conviction unless they can prove a compelling business reason. Certain professions, like teachers, nurses, doctors and law enforcement officials, require disclosure as a condition of employment. There are other situations where a conviction must also disclosed, such as when a person is applying for a professional license – such as a law school graduate applying for admission to a state bar.

Notably, positions that require driving have obvious compelling business reasons to discriminate against DWI/DUI offenders. Therefore, someone with a DWI/DUI conviction who is applying for a position as a commercial truck driver, cab driver, delivery truck driver, etc. should disclose their prior DWI/DUI conviction.

For all these reasons, it is especially important to hire an experienced New Jersey DUI/DWI attorney if you have been arrested or charged with drunk driving in this state. Not only do penalties include the possibility of jail time, significant fines, and loss of driving privileges – a conviction for driving while intoxicated can also result in the loss of current of future job possibilities. An experienced lawyer can help you take advantage of certain laws that can lessen the penalties you must face or may be able to have the charges against you dismissed completely.

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

The law regarding criminal history checks and expungements of DWI/DUI can be complicated and is different for everyone, depending on their situation. If you or someone you know is 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: Blood Alcohol Tests, Criminal Law, Driver's License Suspension, Driving Under the Influence of Drugs, Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, DWI Video Evidence Tagged With: ,

The Twenty Minute Breathalyzer Waiting Period

February 2, 2017 by

Drunk driving breath test
It is likely common knowledge that if you are pulled over and arrested for drunk driving, one of the ways the police may try to prove the charges against you is by making you take a breathalyzer test. The breathalyzer test is meant to measure your Blood Alcohol Content (BAC), and the legal limit for driving in New Jersey is under .08%

What many drivers do not realize, however, is that there are two potential breathalyzer tests that a police officer may use during a drunk driving investigation and arrest: the roadside breath test and a breathalyzer taken back at the police station. The roadside breath test is sometimes also called a portable breath test (PBT), and it is usually provided on a small handheld device that looks like an inhaler you blow into. 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 that the police officer has probable cause to conduct an official breathalyzer test at the police station. The results of the PBT are not admissible in court to prove drunk driving.

There’s another rule that many people do not know about. Once a drunk driving suspect is brought back to the police station, the police still cannot immediately administer the official breathalyzer test on the Alcotest 7110 machine.

20-Minute Observation or Waiting Period

According to the Supreme Court in State v. Chun, operators of the Alcotest 7110 machine must wait at least 20 minutes before collecting a sample from a person who has been arrested in order to avoid overestimating the readings due to the possibility of residual effects of alcohol in the mouth. In fact, the breathalyzer machine is programmed to prohibit the operation of the device before 20 minutes has passed from the time entered as the time of arrest.

During this time, the DUI/DWI suspect must be watched, uninterrupted, during this waiting time to make sure that no alcohol has entered the person’s mouth while he or she was waiting for the start of the testing procedure. According to another case, Romano v. Kimmelman, the government has the burden of proving that they adhered to this 20-minute observation period requirement. Additionally, if the person swallows anything or throws up or the police officer notices chewing gum or tobacco or any other foreign objects in the person’s mouth, the machine operator is required to start over the 20-minute waiting period.

Actual Observation Requirement

In order for the waiting period to be legally valid, police officers are trained that drunk driving suspect must be observed uninterrupted for 20 minutes. It is not enough that the person under arrest be in police custody, such as in the back of the police car in handcuffs, for that period of time. The proper procedure requires that the person actually be watched by the Alcotest machine operator for the entire period of time in order to avoid taking steps that could conceivably contaminate the breath sample.
Similarly, the police officer’s observation must be of the sort that makes it possible for the police officer to detect if contamination occurs. If the police officer looks away, he must be close enough to detect contamination by smelling it or hearing it. An officer who rides alone in the police vehicle with the DUI suspect must be able to pay attention to the suspect, free from road-related distractions, in order to spot the suspect throwing up or putting anything in his or her mouth.

Failure to Follow the Requirements

Because of the strict requirements of the rule, it is often the case that the government is unable to show that the 20-minute observation period was specifically followed. If the rule is not followed as demanded by the law, then an experienced drunk driving attorney will be able to challenge the results of the Alcotest, and may be able to have the results of the test suppressed so that it cannot be used in Court.

Because the law regarding BAC evidence is so complicated, it is important to always consult an experienced DWI/DUI lawyer if you or someone you know is 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.

New Jersey DUI/DWI Lawyer Edward M. Janzekovich Knows How to Defend You if You Are Charged with Drunk Driving

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: Blood Alcohol Tests, DWI - DUI, DWI & DUI Checkpoints

New Jersey DWI Attorney Discusses Auto Brewery Syndrome – Could it Be Responsible for Your DUI?

January 24, 2017 by

Auto-Brewery-SyndromeThe consequences for getting a convicted of driving under the influence of alcohol or drugs in the State of New Jersey are potentially devastating. Even a first offense can result in jail time, loss of license, fines, and the potential loss of your ability to work or provide for your family and loved ones. If you have already been convicted of one or more prior DWIs, any additional offense will result in much more devastating penalties: mandatory jail, loss of license, and other increased punishments compared to the first offense.

But what if you have been unfairly convicted because of a rare medical condition?

Auto Brewery Syndrome is a rare medical condition that could make it appear as if you have been drinking and driving, even when you haven’t. Also known as gut fermentation syndrome, the condition has even been known to lead to unfair charges for operating a motor vehicle under the influence of alcohol.

What is Auto Brewery Syndrome?

Auto Brewery Syndrome is a rare medical condition in which intoxicating amounts of ethanol – the scientific name for drinking alcohol – is spontaneously made within a person’s body in their digestive system. It is potentially caused by having an unusually large amount of active yeast in the body – possibly brewer’s yeast, also known as saccharomyces cerevisiae, which is normally used to turn sugars into alcohol when making beer or other liquors. An excess of yeast in the gastrointestinal tract can sometimes lead to a person’s body turning into its own brewery – making alcohol from sugar inside the body and getting a person drunk even when they have not had any alcohol to drink.

Brewer’s yeast can be found in a great many places, including breads, wine and beer. Usually, it just passes through the body harmlessly. In very rare cases, it takes up residence in the intestines and can multiply, leading to Auto Brewery Syndrome. Although researchers do not know the exact cause for the condition, some speculate that it can affect some individuals after taking antibiotics and leading to an intestinal imbalance.

Known Cases of Auto Brewery Syndrome

In one known case of Auto Brewery Syndrome, a man in Texas showed up to the Emergency Room complaining of dizziness. A quick test revealed he had a Blood Alcohol Content (BAC) of .37% – almost five times the legal limit for driving in the state. However, the man claimed he had not had a drop of alcohol. This was not the first time it had happened to him, either. After performing some studies on him, the doctors were able to confirm he had Auto Brewery Syndrome when they gave him a .12% BAC without drinking any alcohol, simply by feeding him carbohydrate rich foods.

Could Auto Brewery Syndrome Be the Cause of Your DUI?

Although Auto Brewery Syndrome is still not well-understood by the scientific and medical community, there are some cases where it has been used as a defense against drunk driving charges. Proving such a case can be very difficult, however, because the condition is not well-known and courts will be skeptical as to any defendant who claims he or she had a BAC over the legal limit but was not actually drinking. Evidence in such a case will need to include expert testimony from a doctor or other expert who can verify that a defendant suffers from the condition. If you suspect you or someone you know has Auto Brewery Syndrome, it is important to consult a physician to have any symptoms well-documented.

Furthermore, if you or someone you know has been arrested or charged with DUI/DWI, it is important to consult an experienced attorney immediately. A lawyer who specializes in drunk driving law will be able to review your case, look for rare circumstances such as Auto Brewery Syndrome, and help to prepare the best defense possible. With the right evidence, an experienced drunk driving attorney may be able to have the charges against you dropped completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help, Even in Complicated Drunk Driving Cases

A charge for driving under the influence of alcohol is extremely serious and defending those cases often involve complicated evidentiary issues. For that reason, it is important to consult a drunk driving lawyer who understands and can review your case completely. 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: Blood Alcohol Tests, Driver's License Suspension, Driving Under the Influence of Drugs, Drunk Driving, DWI - DUI Tagged With: ,

New Jersey DUI Lawyer Takes a First Look at Proposed Senate Bill 404, Considering Diversionary Treatment for Intoxicated Drivers

January 17, 2017 by

Drunk-Driving
Although the bill was introduced last year, the New Jersey Senate may soon be considering updates to the State’s Driving While Intoxicated law, N.J.S.A. 39:4-50, as submitted by Senator Peter J. Barnes, III of District 18.  The law has not been changed since 2009.  While it has not yet been passed, the newest version would create a Diversionary Program for certain defendants who are charged with driving while intoxicated, providing an alternative to the harsher penalties that currently exist for individuals convicted of drunk driving.

Who Will the Proposed Diversionary Program Affect?

The proposed law is an attempt to give a second chance to defendants charged with a first offense of the state’s Driving While Intoxicated law.  It would affect any driver who pleads guilty or is convicted and found guilty of driving a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, as defined by the statute.  A defendant can take advantage of the new provisions if he or she has never been found guilty of drunk driving before and never participated in the diversionary program before. 

Once these requirements are met, a driver has the opportunity to enter by providing notice to the prosecutor and apply for entry into the program.  The court will consider the application based on several factors, including:

  1. The facts surrounding the commission of the offense;
  2. The motivation, age, character, and attitude of the defendant;
  3. The needs and interests of the community;
  4. The likelihood that the defendant’s offense is related to a condition or situation that would be conducive to change through the defendant’s participation in the intoxicated driver diversionary program; and
  5. Any other factors deemed relevant by the court.

The driver also cannot take advantage of the program if he or she caused an accident resulting in a serious injury or if he or she was driving a passenger under the age of 14 at the time.

A driver can only take advantage of this opportunity once.

How Can the Program Help?

Under current law, first-time drunk driving defendants are fined $250 to $400 if their blood alcohol concentration (BAC) is 0.08% to 0.10%.  They are fined $300 to $500 if their BAC is more than 0.10%.  In addition, a first-time defendant’s driver’s license can be suspended for three months if the person’s BAC is 0.08% to 0.10%, and the driver’s license of a defendant whose BAC is more than 0.10% is suspended for seven months to one year.  Finally, certain DUI defendants are required to install an ignition interlock device on his or her vehicle during or after the period of driver’s license suspension.

Under the new law, the diversionary program can last between 60 days and two years.  During the period of enrollment, the DUI/DWI charges against the driver are suspended.  If the driver successfully completes the program, the original charges are dismissed.  Furthermore, the court shall order that the charges be removed from the individual’s driver’s history abstract and it is not considered a conviction for other legal purposes.  Finally, charges dismissed based on the diversionary program are not counted as a first offense when calculating subsequent penalties if the driver is later convicted or found guilty of DWI/DUI again.  

It is important to recognize that there is no guarantee that this proposed bill will ever pass.  Many bills are introduced before the New Jersey State Assembly and Senate every legislative year.  Regardless of whether or not this bill becomes law, a person charged with driving under the influence of alcohol or drugs should always contact an experienced drunk driving attorney, who will be able to provide the best advice or may be able to have the charges dropped completely.

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

A charge for driving under the influence of alcohol is extremely serious and new laws, rules, and regulations take effect all the time. For that reason, it is important to consult a drunk driving lawyer who makes it his job to know all the changes.  If you or someone you know is charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney will know the best way to help and 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 Tagged With: ,

New Jersey Drunk Driving Attorney Discusses DUI Appeals and What Your Options Are If Convicted

December 21, 2016 by

A shot of liquor and keys on a table

If you are arrested and charged with driving under the influence of alcohol or drugs, we always recommend that you consult an attorney as soon as possible. An attorney can review your case, tell you what penalties you may be facing, negotiate to help get you a better deal, or potentially fight your case and get the charges against you dismissed completely.

But what if you have already been convicted? At that point in time, it may feel like your case is over and you just need to deal with the consequences, including fines, jail time, and loss of driving privileges. However, if you have already been convicted, an experienced DUI lawyer may still be able to help. Your case may not be over, after all, and you may still be able to have your sentence changed or the charges against you dismissed if the municipal court committed a miscarriage of justice – meaning it did something wrong or against the rules.

Appellate Courts in New Jersey

In New Jersey, you have the right to appeal any case, including a DUI conviction, within 20 days of your case ending. If your case went to trial in a municipal court, where many DUI/DWI cases are heard, then you will be appealing your case to one of the State Superior Courts – almost every county has its own Superior Court.

If your case was originally heard in the Superior Court of New Jersey, or if the Superior Court rules against you on your first appeal from municipal court, then you have a further right to appeal your case to the New Jersey Appellate Division.

When Can a Lawyer File an Appeal in Your Case?

There are many reasons why a DUI attorney may be able to appeal your case. For example, there may have been legal errors during the municipal trial, or the procedural requirements required for a legally sufficient guilty plea may not have been met. You may have also entered a conditional guilty plea, which allows you to plead guilty while still reserving your right to appeal adverse rulings on certain pre-trial motions. Additionally, your speedy trial rights or Miranda rights may have been violated or the sentence imposed upon you might even be illegal.

Finally, it is your right to insist that you did not commit the crime of driving under the influence of drugs or alcohol and a municipal appeal allows a new trial on the record before a new judge. An experienced DUI/DWI attorney can argue that the evidence below simply should not firmly convince the Law Division judge of the defendant’s guilt as a matter of law.

How Does a Lawyer File an Appeal on Your Behalf?

Filing a judicial appeal can be a complicated matter. For that reason, it is especially important to consult with an attorney who is experienced in representing clients who have been charged or convicted with driving under the influence of drugs or alcohol. An experienced lawyer will know how to file an appeal within the time limit, and know how to extend the time limit under certain circumstances. An experienced lawyer will also be able to write and file the necessary briefs, notices of appeal, and court costs on your behalf within the required time limits. Finally, a knowledgeable attorney may be able to postpone any sentences that have been entered against you while the appeal is pending, such a jail sentence or loss of license, and then argue the appeal before the panel of judges when your case is scheduled for oral argument.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help if You Have Been Charged or Convicted with a DUI

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 will explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer will also argue on your behalf and may be able to have the charges dropped entirely. 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, Driving Under the Influence of Marijuana, DWI - DUI

New Jersey DWI Attorney Reminds You to Be Extra Careful About Drunk Driving Around the Holidays

December 13, 2016 by

A drink and car keys

With Thanksgiving just behind us, and holidays like Christmas, Hanukkah, and New Year’s Eve around the corner, we at the Law Office of Edward M. Janzekovich would like to remind you to be extra careful about drunk driving when it comes to going out and celebrating this festive and happy holiday season.

Not only should you be extra careful so that you can keep yourself and your loved ones safe, you should also be aware that police officers and government officials are on high alert for any potential drunk or intoxicated drivers during the holidays. One little mistake, such as thinking you can drive when your blood alcohol content (BAC) is actually above .08%, can result in serious consequences – such as fines, jail time, or loss of driving privileges – that affect you for years to come.

Heightened Police Activity and DUI Checkpoints

Last year, Pennsauken, Woodbridge, Spotswood, and Wall townships reported the most DWI arrests in the state between December 11, 2015 and January 1, 2016. This past Thanksgiving, NJ.com reported that at least 15 New Jersey towns planned to increase DUI patrols and checkpoints during the holiday weekend (http://www.nj.com/news/index.ssf/2016/11/where_nj_cops_are_increasing_dui_patrols_checkpoin.html). These included:

  • Atlantic Highlands
  • Aberdeen
  • Belmar
  • Hazlet
  • Highlands
  • Holmdel
  • Keyport
  • Keansburg
  • Matawan
  • Middletown
  • Neptune
  • New Brunswick
  • North Bergen
  • Union Beach
  • Union City

Between now and New Year’s Day, police officers across the state will be on the look-out for any signs or drunk driving. Therefore, if you plan to go out and drink this holiday season, you should take a taxi, call an Uber, or pick a designated driver. Otherwise, even if you don’t get in an accident and hurt yourself or others, you run the risk of getting arrested for drunk driving every time you choose to have even one drink and get behind the wheel.

DUI Checkpoints, Sobriety Tests, and Taking a Breathalyzer

Police officers will be most likely to set up DUI checkpoints at the location of bars or other venues where lots of people will be drinking. This is important, because it means you could be randomly stopped and checked for signs of drunk driving, even if you do not display any erratic behavior on the road – such as swerving, speeding, or braking unexpectedly – just for going to certain venues during the holidays. In New Jersey, police officers are actually prohibited from stopping cars based on appearance alone at checkpoints, so cars will be detained in a pre-selected pattern such as every car or every third car.

That means that even if you are driving perfectly, you could be pulled over at a DUI checkpoint. Then, if the police officer has reasonable suspicion to believe you were driving drunk – such as smelling alcohol on your breath – you could be asked to take a field sobriety test or possibly even take a breathalyzer.

Once you’ve taken a breathalyzer, any BAC reading of .08% or higher can potentially be used as proof of guilt for a charge of DUI/DWI. That means that even if you were driving perfectly, and you do not believe you did anything wrong, you could still be convicted of driving under the influence of alcohol based on your breathalyzer results. As we’ve discussed in this blog before, whether you are functional or coordinated during a sobriety test is not a defense against a BAC at or above 0.08%

Therefore, the best advice we can give you this holiday season is to be careful. If you or someone you know is arrested or charged with a DUI or DWI, it is important to contact an experienced attorney immediately. A professional drunk driving lawyer will review your case and can help fight the charges against you.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Is There for You This Holiday Season

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 will explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer will also argue on your behalf and may be able to have the charges dropped entirely. 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, DWI & DUI Checkpoints Tagged With: , , , , , , , , ,

Drunk Driving Charges and Your Right to Receive Instructions in a Language You Can Understand

December 6, 2016 by

dwi-img

In all states, including New Jersey, if you arrested for driving while intoxicated, the police officer must read a “standard statement” that contains instructions telling the driver that he or she MUST submit to breath testing if there is probable cause to believe that the person was driving under the influence of alcohol. Part of the standard statement – sometimes referred to in New Jersey as Paragraph 36 – is the warning that if you refuse to submit to the breath test and “if a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.” The entire statement is meant to inform you that there are serious consequences that will occur if you refuse to provide a breath sample. A copy of Paragraph 36, as updated in 2012, can be found at http://njpdresources.com/dui/pdfs/english1.pdf

But what happens if you or someone you know does not speak English? ¿Hablas Español? Nói tiếng Việt? Говорить по-русски? Another language? Regardless of what language you speak, New Jersey law also provides that you have a right to have these instructions provided to you in a language that you can understand. Otherwise, it is possible that your rights are being impermissibly violated.

State v. Rodriguez-Alejo

In State v. Rodriguez-Alejo, a Spanish-speaking man who could barely speak English, and who had only been in the United States for two years and had taken his driving test in Spanish, was pulled over and suspected of drunk driving.  At the police station, the officer attempted to read the standard instructions to the defendant, and the man stated that he did not understand.   Although he tried to follow along with the police officer anyway, who used a combination of words and gestures to provide instructions, the defendant was not able to provide a proper breath sample and was later convicted for refusing to comply with the breath sample requirements.

On appeal, the New Jersey Superior Court Appellate Division restated that a police officer must read the standard statement to any defendant who is arrested for DWI/DUI, and the defendant must CLEARLY agree to submit to a breathalyzer test. Therefore, the Court held that reading the standard statement to motorists in a language they do not speak is the same thing as not reading the statement at all.

In order to be “informed” of the warnings that are provided in Paragraph 36, the information must be given to the defendant in a language he or she speaks and understands. The same reasoning applies to any instructions that are given to a defendant about how to actually take a breathalyzer test. Based on this holding, the Court decided that the Spanish-speaking defendant could not be convicted for refusing to provide a breath sample.

State v. Shaymardanov

It is important to note, however, that a defendant only needs to understand the instructions being given to him – the instructions do not need to be given in the defendant’s best or native language.

Recently, in the case of State v. Shaymardanov, the Appellate Division revisited State v. Rodriguez-Alejo with regard to a Russian-speaking defendant who was pulled over and charged with driving under the influence of alcohol. Although the Court determined that Rodriguez-Alejo was still good law, the Appellate Division upheld the conviction, finding that the driver always appeared to understand the police officer and the police officer had no trouble understanding the defendant.

Instructions Available in Other Languages

Since at least 2010, the State has arranged for certified translated versions of the standard statement to be prepared—in both written and audio form—in the nine foreign languages in which the MVC offers the written driver’s test – Arabic, Chinese (Mandarin), French, Japanese, Korean, Polish, Portuguese, Russian, and Spanish. If you or someone you care about is arrested on suspicion of drunk driving, it is likely that the police will be able to provide you with instructions in a language you can understand. While you should always contact an experienced New Jersey DWI / DUI lawyer / attorney if you are charged, an attorney may be able to help if you were never provided with instructions in a language you could understand.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Will Fight to Make Sure Your Rights Were Protected

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: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, Nre Jersey Drunk Driving Penalties Tagged With: , , ,

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

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

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.

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