New Jersey DUI Attorney Discusses Plea Bargaining in Drunk Driving Cases

February 20, 2017 by

Bargaining in Drunk Driving Cases

Generally speaking, the law in New Jersey does not permit a defendant in a drunk driving case to plea bargain or enter into a plea arrangement with the police, the prosecutor, the court, or any other person on behalf of the state when it comes to charges for driving under the influence of drugs or alcohol. Therefore, if you are charged with DUI/DWI, and you were hoping to be able to plead guilty in order to have the charges changed or the penalties reduced, you may be out of luck. As with anything, however, that may not be the whole story.

While the New Jersey Supreme Court has long recognized the value of plea bargaining in order to make the administration of justice more effective, specific restrictions on plea bargaining were placed on defendants charged with violating N.J.S.A. 39:4-50, the state’s DWI/DUI law. Since State v. Hessen, the Courts ruled to take away a prosecutor or judge’s power to dismiss or downgrade drunk driving cases. For that reason, it is extremely important to consult an experienced drunk driving attorney if you or someone you know has been charged with driving under the influence of alcohol or drugs. An attorney will be able to explain your situation, help you prepare the best defense in your case, and may be able to have the charges against you dismissed completely. Moreover, there are still some ways that an attorney may be able to work around the plea bargaining restrictions and help improve the circumstances of your case.

An Attorney Can Still Help Have Your Case Dismissed

First, it is important to remember that the ban on plea bargaining in DUI/DWI cases does not mean that a court or prosecutor cannot decide to dismiss the charges against you completely. Municipal prosecutors have a legal and ethical obligation to ensure that justice is done in individual cases. This means that they should not prosecute a drunk driving case where the evidence cannot support the charges. Thus, an application by a municipal prosecutor to dismiss a drunk driving case or seek its downgrade to a different offense based upon evidentiary or proof problems does not constitute a plea arrangement under the rules.

For instance, as we have previously discussed in this blog, an experienced DUI/DWI lawyer may be able to have certain evidence excluded in your case – such as due to a problem in the way breathalyzer or blood alcohol content evidence was collected. This could result in the prosecutor deciding to downgrade or dismiss the charges for evidentiary reasons without plea bargaining.

Other Exceptions to the Plea Bargaining Ban

The rules forbidding plea bargaining cases also only apply to N.J.S.A. 39:4-50 charges. Therefore, an attorney can still help you have related charges merged or amended if you are being charged for driving under the influence of alcohol or drugs at the same time. The rules permit the dismissal of traffic tickets, ordinance violations, and disorderly persons offenses that are companion to a drunk driving ticket. These charges are considered to be companion if they come out of the same set of facts and circumstances that led to the DUI/DWI incident.

While entering in this kind of plea bargain will not eliminate the penalties associated with a conviction for drunk driving, a defendant who pleads guilty to a drunk driving offense in exchange for the dismissal of companion offenses may often avoid many thousands of dollars in fines, mandatory jail terms, additional loss of license, and or significant consequences.

Finally, there are a number of other complicated situations wherein a defendant may be permitted to enter into a plea arrangement with the court. This includes when a defendant is charged with DUI and refusal to submit to a breathalyzer test, or when a defendant is charged with DWI while in a school zone. If you or someone you know is arrested for driving under the influence of drugs or alcohol, it is important that you contact an experienced lawyer immediately, so that you can understand and take advantage of certain laws that can lessen the penalties you must face.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Will Negotiate and Argue on Your Behalf

DWI/DUI laws are often very complicated and the specific rules that affect each defendant can vary depending on the 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: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints Tagged With: ,

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: ,

New Jersey DUI Lawyer – Supreme Court Questions Whether Drivers Can Be Forced to Take a Breathalyzer Test Without a Warrant

May 12, 2016 by

Last month, the United States Supreme Court addressed whether police can require drivers to take a “deep-lung” breath test without a search warrant. Three cases out of Minnesota and North Dakota were joined and brought before the Court. These states have laws that make it a crime for drivers to refuse to take a breathalyzer, urine, or blood test. Eleven other states have similar laws, including Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia. A majority of the justices questioned whether these laws criminalizing refusal are constitutional, in light of an individual’s Fourth Amendment right to be free from unreasonable searches and seizures.

Generally speaking, the police cannot search a driver or their car after an arrest without first getting a search warrant, unless it is for their own personal safety or to preserve evidence. In 2013, the Supreme Court ruled that police cannot conduct blood tests for drunken driving without first obtaining a warrant. However, some justices remain hesitant to apply the same rule to the breathalyzer test, because it is less intrusive than drawing blood.

Previously in North Dakota, refusal to submit to a chemical test carried only civil penalties, such as the suspension or revocation of one’s license. However in 2013, North Dakota lawmakers passed legislation to make penalties for drunk driving offenses more severe—in part by punishing a refusal to take a breathalyzer test in the same manner as it punishes the crime of driving under the influence.

The groups backing the states’ laws, including Mothers Against Drunk Driving (MADD), have argued that when a person applies for a driver’s license, they give their implied consent to be subjected to a chemical test in the event that they are arrested for suspected drunk driving.

However, several groups backing the defendants, including the American Civil Liberties Union (ACLU) and the DUI Defense Lawyers Association (DDLA), have argued that the government cannot criminalize conduct protected by the Fourth Amendment. One cannot truly give “implied consent” to take a breathalyzer test when they get their license if they know that they will face criminal sanctions for refusing to take the test. The DDLA argued that there are better ways to deter drunk driving, including creating an electronic warrant system, setting up sobriety checkpoints, providing alcohol abuse treatment, and requiring the use of ignition interlock devices for convicted drunk drivers.

So how did the justices come down on the issue? Justice Samuel Alito was the only justice who seemed to be strongly in favor of criminalizing refusal, and he emphasized that breathalyzer tests are only a minimal intrusion. He expressed that the only reason people don’t want to submit to a breathalyzer test is because they don’t want their blood alcohol measured, it is not that they object to blowing into a straw. Justice Kagan seemed to agree with this line of reasoning, noting that police have an interest in testing a driver’s breath as quickly as possible, before their blood alcohol content (BAC) goes down.

Ultimately, the states were unable to come up with a persuasive reason why police cannot secure a warrant while transporting suspects to the police station or hospital for testing. Forty states now utilize electronic warrant systems.

Although it is not a crime to refuse to take a breathalyzer test in New Jersey, there are harsh civil penalties, including fines, motor vehicles surcharges, a long suspension of driving privileges and special sentencing enhancements if the refusal occurs within a school zone. A refusal can also be used to draw an inference of guilt in a DUI trial. If you are pulled over in New Jersey for a suspected DUI, the police can detain you and bring you to a hospital where staff may draw blood.

New Jersey DUI/DWI Lawyer Edward M. Janzekovich Represents Drivers Who Have Refused Chemical Testing

If you were arrested for drunk driving and refused to submit to chemical testing, you are likely facing steep penalties. In addition to a DWI charge, you are probably also facing penalties for refusing to take the breathalyzer test. To speak to an experienced New Jersey DUI lawyer and begin building your defense, call the Law Office of Edward M. Janzekovich at 732-257-1137 or contact us online today. We represent clients throughout New Jersey, including Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Filed Under: Criminal Law, Current Events, Drunk Driving, DWI - DUI, New Jersey Attorney Tagged With: , , , , , , , , , , , , , , , , , ,

Police Can Search Your Car Without a Warrant…Again.

September 24, 2015 by

No Warrant Required

Today, the New Jersey Supreme Court just reversed its position on the Warrant Requirement for searches of motor vehicles. NJ Supreme Court ruled in 2009 that police must obtain a warrant to search a motor vehicle, unless exigent circumstances were present. State v Pena Flores (2009).

This morning they decided in State v Witt, that the exigent circumstances standard set forth in Pena-Flores was unsound in principle and unworkable in practice to obtain warrants. They ruled that: The Automobile Exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

The Pena-Flores rule basically required police to request consent to search the vehicle from the owner/operator of the vehicle if probable cause was present, and if denied, they could apply for a telephonic warrant to search the vehicle.  Consent is no longer required.

Filed Under: New Jersey Attorney, New Jersey Search Without Warrant Tagged With: , , , , , , , , ,

POST – CONVICTION RELIEF

September 21, 2012 by

CRIMINAL LAW AND PROCEDURE — POST-CONVICTION RELIEF

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

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

Source – NJSBA Daily Briefing

Filed Under: Court Case Verdicts, Criminal Law Tagged With: , ,

DRUNK DRIVING — SPEEDY TRIAL

September 21, 2012 by

CRIMINAL LAW & PROCEDURE — DRUNK DRIVING — SPEEDY TRIAL

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

The panel affirms, finding that:

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

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, DWI - DUI Tagged With: , , , , , , , ,

CRIMINAL LAW AND PROCEDURE – EXPUNGEMENTS

July 30, 2012 by

14-1-6924 In re Kollman, Petition for Expungement, Sup. Ct. (Rabner, C.J.) (32 pp.) Defendants seeking relief under the statute’s new five-year pathway to expungement have the burden of proving why expungement of a criminal record is in the public interest. Because petitioner appears to have met that burden, the court reverses the denial of his expungement application and remands to the trial court to assess the petitioner’s character and conduct as of the date of its new ruling.

Source – NJSBA Daily Briefing

Filed Under: Court Case Verdicts, Criminal Law, Expungement Tagged With: , , , ,

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