New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

Here are some important cases regarding roadblocks in DWI cases in New Jersey:

State v. Kirk, 202 N.J. Super 28(1985)

The court held that temporary road block set up by exercise of absolute, unbridled discretion of officers in field is violative of State Constitutional provision against unreasonable seizure; however, if certain procedures set forth, ensuring supervisory control of checkpoints and warnings to motorists, are carefully followed, any constitutional objections will be overcome.

State v. Moskal, 246 N.J. Super 12(1991)

The court held that the stop of a motorist at a sobriety checkpoint did not violate his Fourth Amendment rights; site of checkpoint has been determined by DWI arrest rate, past accident rate, public safety and awareness that would arise from the checkpoint, requisite participation of command or supervisory authority had been obtained in overseeing operation, and all necessary advance publicity and warnings of checkpoint had been given.

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Here are some important cases governing multiple DWI offenses and categorization of offenders in New Jersey:

State v. Burroughs, 349 N.J. Super 225(2002)

The court held that the defendant was subject to third offender treatment, although more than ten years elapsed between his first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses.

State v. DiSomma, 262 N.J. Super 375(1993)

The court held that a conviction for refusal to take a breathalyzer test could not serve as a basis for imposing second offender status when sentencing defendant for later conviction for driving while intoxicated.

State v, Tekel, 281 N.J. Super 502(1995)

The court held that defendant can be sentenced as a second offender after refusing to take a breathalyzer test when they have a previous DWI conviction.

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Here is some important precedent governing Blood & Breath test refusal in New Jersey:

State v. Cummings, 184 N.J. 84 (2005)

The Supreme Court of New Jersey held that the elements of refusal must be established beyond a reasonable doubt.

State v. Bernhardt, 245 N.J. Super 210(App. Div. 1992)

This case sets forth the six elements necessary to establish refusal. The court also held that once a defendant refuses to take a breathalyzer test he cannot thereafter “cure” the refusal by agreeing to take the test.

State v. Carrado, 184 N.J. Super 561(App. Div. 1982)

This case held that a request requires a simple “yes” or “no” and setting is not one for explanation, negotiation, or debate.

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Here are a couple important cases regarding DWI drug charges in New Jersey:

State v. Bealor, 187 N.J. 574 (2006)

The NJ Supreme Court held that competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant’s consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the defendant’s arrest, constitute sufficient proofs to establish DWI beyond a reasonable doubt.

State v. DiCarlo, 67 N.J. 321 (1975)

The NJ Supreme Court held that the definition of narcotic drug in the Controlled Dangerous Substance Act is not of controlling weight in interpreting the same phrase appearing in N.J.S.A. 39:4-50.

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Here is some important precedent regarding proof of intoxication for DWI cases in New Jersey:

State v. Johnson, 42 N.J. 146 (1964)

The court held that proof of intoxication may be established either through breath test or other toxicology tests, or by other evidence such as the driver’s own admissions or his performance of psycho-physical tests.

Romano v. Kimmelman, 96 N.J. 66 (1984)

The NJ Supreme Court established the reliability and admissibility of breathalyzer test results. The court held that (1) manufacturers' breathalyzer models “900” and “900A” are scientifically reliable for purpose of determining content of blood alcohol, with narrow qualification as to admissibility of test results relating to possible effects of radio frequency interference; (2) results of administration of model “900” can be received in evidence without further proof establishing any additional conditions for admissibility relating to effects of radio frequency interference, provided that hand-held transmitters are banned from area in close proximity to breathalyzer instrument; (3) model “900A” results may be admitted in evidence and form basis of driving under influence conviction either if breathalyzer result consists of two tests or readings within tolerance of 0.10 percent of each other, breathalyzer instrument has been found not to be radio frequency interference-sensitive, or if sensitive, it is shown that in administration of instrument, instrument was protected from transmitters and radio frequency; and (4) new trial on newly discovered evidence may be brought only when conviction based upon such breathalyzer results could possibly have been affected by radio frequency interference.

State v. Maida, 332 N.J. Super 564 (2000)

The court held (1) that the coordinator’s certificate was sufficient to carry the burden of proof as to accuracy of breath test machine and (2) the Horizontal Gaze Nystagmus (HGN) test was sufficiently reliable to be admitted as scientific evidence of intoxication in a criminal trial.                                       

State v. Cryan, 363 N.J. Super 442 (2003)

The court held under the influence means a condition which so affects the judgment or control of the motor vehicle operator as to make it improper for him to drive on the highway. In this case bloodshot eyes, a strong odor of alcohol on his breath, and hostile and erratic behavior were sufficient to establish driving while intoxicated.

State v. Slinger, 281 N.J. Super 538 (1995)

The court held that proof of intoxication can be shown independent of the breathalyzer results where, as here, defendant’s erratic driving, his physical appearance, demeanor, and speech, as well as the smell of alcohol on his breath were sufficient reliable indicia to establish driving while intoxicated.

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Here are some important cases regarding proper DWI stops in New Jersey:

State v. Carpentieri, 82 N.J. 546 (1980)

The police must have an articulable and reasonable suspicion that a violation of the traffic laws has occurred in order to effectuate a stop for DWI. Basically, the New Jersey Supreme Court in this case applied the United States Supreme Court decision holding random traffic stops invalid but applied this rule only to those stops that occurred after the Supreme Court decision.

State v. Pegeese, 351 N.J.Super. 25 (App.Div.2002)

The police may not detain occupant for consent search absence violation or criminal conduct once evidence of proper licensing, registration and the like is supplied.

State v. Puzio, 379 N.J.Super. 378 (App.Div.2005)

A stop is invalid where it is based on a police officer’s mistaken understanding of the law. The court held that as an issue of first impression, officer's belief that defendant was operating a vehicle in violation of statute requiring display of business and address on a commercial vehicle was not objectively reasonable, and thus officer was not justified in conducting investigatory stop of vehicle.

State v. Pitcher, 379 N.J.Super. 308 (App.Div.2005)

A stop based on an officer’s mistaken understanding of a fact, e.g., that the driver had a suspended license, will not be invalidated provided the officer’s actions were supported by a “reasonable” belief that the related facts were accurate. The court held that officer’s traffic stop, conducted in reliance on erroneous information in the DMV database that showed that the defendant had a suspended license, was reasonable.

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Here are a few case summaries of important case law in New Jersey regarding w operation of a vehicle:

State v. Mulcahy, 107 N.J. 467 (1987)

The important precedent from this case is that the key to establishing operation is whether or not the defendant intended to operate the vehicle. The Supreme Court of New Jersey held that police officers, who saw defendant, who was drunk, stagger out of tavern into car that was illegally parked on sidewalk, could arrest defendant for purposes of submission to sobriety test when defendant started to put keys in the ignition. The defendant’s attempt to place keys in the ignition was “operation” of motor vehicle sufficient to warrant submission to the breathalyzer test.

State v. Daly, 64 N.J. 122 (1973)

The defendant did not possess an “intent” to operate his car notwithstanding the fact that the car was running insofar as he had been sleeping in the car with the heat on for almost 1.5 hours prior to police arriving.

State v. DiFrancisco, 232 N.J.Super. 317 (LawDiv.1988)

A defendant does not “operate” a motor vehicle under the DWI statute where it is impossible to move the vehicle. Defendant who was sitting behind steering wheel of pickup truck which was partially on a driveway and partially in a ditch and which, according to officer, could not be moved was not “operating” the truck and thus could not be convicted of driving while intoxicated.

In the absence of any evidence from the State showing that breathalyzer test was administered within a reasonable time after defendant was stopped for drunk driving, breathalyzer test results were inadmissible.

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The success of self-defense as a defense to murder or assault depends on the extent of the force used and the extent of the threat to the individual’s safety. Non-deadly force can be used if the person reasonably believes that non-deadly force is about to be used on him. Deadly force can be used if the person reasonably believes that deadly force is about to be used on him. Deadly force is any force that produces death. In a minority of jurisdictions, before using deadly force you must retreat, provided that you can do so safely. In these jurisdictions, even where you can retreat safely, you don’t have to retreat from your home (this is known as the “Castle Rule”). Another important rule in this arena is the “Original Aggressor Doctrine” which requires that, if you are the original aggressor, you lose the ability to claim self-defense unless you withdraw from the altercation and communicate that withdrawal to the other party. A final important rule in this area is that you cannot use deadly force in defense of a dwelling or in defense of property.

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The insanity defense is a favorite on television and in the movies in attempting to relieve criminal defendants of punishment for their acts. The test in the majority of States is known as the M’Naghten test: the standard is whether at the time of the conduct in question the defendant lacked the ability to know the wrongfulness of his actions or understand the nature and consequences of his acts; the product of their incapacity must be the product of mental disease or defect. This is a purely cognitive test. Another test used by some jurisdictions is the “irresistible impulse” rule: the standard is due to mental disease or defect the defendant lacked the capacity for self control or free choice. This is a volitional test. Finally, the Model Penal Code test, an authority in the field of criminal law, uses broader language and is both cognitive and volitional. This test requires that the defendant lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. If the defense attorney is successful in proving one of these three tests (depending on which test the jurisdiction uses) then the defendant may be successful in asserting an insanity defense.

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Usually clients are interested in the difference between murder and manslaughter because this could significantly affect their sentences. For a homicide to occur, the victim must be human (horses, dolphins, etc. do not constitute a homicide). Murder/Common law murder are malice crimes: This means that the defendant recklessly disregarding a substantial risk that a particular harmful result would occur. Murder is only a specific intent crime if there is a statute that provides for that requisite mental state, which is the case in New Jersey.

There are four types of common law murder:

1. Intent to kill;
   
2. Intent to do serious bodily harm;
   
3. Depraved heart murder: This requires a reckless indifference to the value of human life (also known as abandoned and malignant heart murder);
   
4. Felony murder: The murder doesn’t require an intent to kill, only that the death occurred during the commission of a felony (the predicate felonies are burglary, arson, rape, robbery, kidnapping, and sodomy).

            Generally, the difference between murder and manslaughter is premeditation. There are two types of manslaughter, voluntary and involuntary manslaughter.

Voluntary manslaughter is “heat of passion” manslaughter, an intentional killing committed in the heat of passion. This requires:

1. adequate provocation and
   
2. an insufficient opportunity to cool off.
   

If you have both elements then you are guilty of manslaughter rather than murder. If the provocation was not sufficient or you had a sufficient opportunity to cool off then you will be charged with murder. The most common examples of voluntary manslaughter cases are fist fights where an individual dies or where a spouse catches their significant other in an act of adultery and kills one or both of the parties involved.

The other type of manslaughter is involuntary manslaughter, which is killing with criminal negligence. This requires a gross deviation from the standard of care sufficient to establish involuntary manslaughter. These are the differences between murder and manslaughter.

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With O.J. Simpson being charged with conspiracy recently I have received a lot of inquiries regarding the necessary elements required for the State to prove a conspiracy. Conspiracy requires basically four elements: 1) There must be an agreement: This is the essence of a conspiracy. The agreement need not be express; it can be implied based on a “concert of action”. An example is a group beating up an individual even though they never spoke regarding the agreement. 2) The individuals involved in the conspiracy need to be pursuing an unlawful objective. Basically, the purpose of the conspiracy must be an illegal one. 3) There must be an overt act: The majority of States require this even though it is not constitutionally based. Any act will do, even if the act is preparatory in nature. This act basically must show intent to do what they did. 4) Specific Intent: Conspiracy is a specific intent crime—the highest level of intent, the mens rea aspect of the crime, must be present. They must intend to agree and intend to commit the underlying crime. If these four elements are met then the State can prove a conspiracy.

Conspirators can withdraw from a conspiracy and this is governed by the Pinkerton doctrine. Conspirators are liable for all crimes they commit and all crimes committed by their co-conspirators provided: 1) the crimes were in the scope of the conspiracy; 2) the crimes were in furtherance of the conspiracy; and 3) the crimes were foreseeable from the creation of the conspiracy. In order to withdraw from a conspiracy, the conspirator must let his co-conspirators know of his withdrawal in a matter reasonably calculated to reach them and it must reach them in time for the co-conspirators to terminate their conduct in furtherance of the conspiracy. Moreover, once a conspirator successfully withdraws from the conspiracy, the withdrawal only stops their liability going forward: they are still responsible for the conspiracy itself and for prior offenses committed (by themselves and their co-conspirators) in furtherance of the conspiracy. This concludes our discussion of the elements necessary to constitute a conspiracy.

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The right to remain silent and the right to counsel are implied rights grounded in the self-incrimination clause of the 5^th amendment. The landmark case of Miranda v. Arizona was decided by the United States Supreme Court in 1966 which held that statements obtained from defendants during incommunicado interrogation in police-dominated atmosphere, without full warning of constitutional rights, were inadmissible as having been obtained in violation of Fifth Amendment privilege against self-incrimination. There are three requirements that trigger Miranda protections: 1) Custody; 2) Interrogation; 3) Testimonial. For a custody situation to occur, the standard is whether a reasonable person would not feel free to leave because of an atmosphere infused by police domination and coercion. Custodial situations can arise in a person’s home while non-custodial situations can occur at the police station; the location is not dispositive of whether or not the situation was custodial. The standard for whether or not interrogation occurred is if the officers knew or should have known that his/her conduct made it likely that the person would incriminate themselves (this standard comes from Innis). Finally, the Miranda protections do not apply to things other than testimony: lineups do not necessitate Miranda protections because they are just displaying physical characteristics.

            A defendant’s Miranda rights can be waived through an express or implied waiver. This waiver must be knowing and intelligent—the defendant understood their rights and the consequences of abandoning them. The waiver must also be voluntary, free from police coercion. Also, a person can waive their rights and then change their mind and invoke their rights again. Under the Edwards doctrine, if a defendant asserts their right to counsel under the 5^th amendment then there can be no further interrogation on any subject unless the defendant himself initiates. Finally, the 5^th amendment is not offense specific: An assertion of your right to counsel applies to any criminal activity, not only the offense you are currently charged with.

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There are many myths associated with the highly publicized “Taking the 5^th” in the American criminal justice system. Obviously taking the 5^th refers to the 5^th amendment. It specifically refers to the self-incrimination clause of the 5^th amendment. First of all, anyone can take the 5^th in any proceeding if you feel you are going to incriminate yourself with your response. Therefore, a person can take the 5^th in both a criminal trial or a civil trial or any other proceeding taken under oath. Secondly, you have to take the 5^th on any given issue the first opportunity you have to do so. If you fail to take the 5^th and answer questions relating to a given issue, it is forever waived. The 5^th amendment protection pertains only to testimony, not to physical characteristics. Moreover, in the American criminal system a prosecutor cannot comment on a person taking the 5^th amendment or invoking your Miranda rights. So when is this privilege unavailable you ask? First, if you are granted immunity from criminal prosecution then you can no longer take the 5^th amendment. Use and derivative use immunity means they can’t use anything you say against you and they also cannot use anything derived from that statement against you. A second situation where the privilege is unavailable is if the statute of limitations has run on the crime meaning you can no longer be prosecuted for the crime. If either of these situations occur, the 5^th amendment privilege is no longer available. Finally, if a criminal defendant does take the stand and they are asked questions that are the proper subject of interrogation, they can no longer take the 5^th. Basically, a criminal defendant is not allowed to take the stand and say what they want on direct examination and then take the 5^th when the prosecutor attempts to cross examine them. Hopefully this information helps clear up some of the truths and myths associated with “Taking the 5^th Amendment”.

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For a 4^th Amendment violation to occur, there must be government conduct. This usually occurs through police actions. Also, some items are so public in nature that they do not carry a reasonable expectation of privacy. Generally, garbage, bank accounts, and odors emanating from your luggage are public in nature and do not implicate 4^th amendment protection. If the person has a reasonable expectation of privacy in the area and item searched, then the police need a warrant issued by a neutral and detached magistrate supported by probable cause and particularity in order to conduct a lawful search. However, there are a few exceptions to the warrant requirement that are considered lawful searches and will not be excluded in a court of law.

The first exception to the warrant requirement is known as “Exigent Circumstances”. These scenarios occur when the police are in hot pursuit of a fleeing felon or when there is evanescent evidence: evidence that burns up in your body such as blood alcohol level or balloons filled with drugs. Another important exception to the warrant requirement is a search incident to arrest. Due to concerns for officer safety and the preservation of evidence, the law allows a search incident to arrest of the individual so long as the arrest is lawful and the search is contemporaneous in time and place with the arrest. Moreover, the search is limited in geographic scope to within the wingspan of the arrested individual. A third important warrantless search exception deals with automobiles. If the officer has probable cause to believe that the car contains evidence of a crime then they are permitted to search the entire car. A fourth exception to the warrant requirement is the famous “Plain View” doctrine. The officers must have lawful access to the place from which the item can be plainly seen, lawful access to the object itself, and the criminality of the object must be readily apparent. A fifth exception to the warrant requirement occurs when an individual consents. This consent must be voluntary, not the product of police coercion. The person must have the authority to consent to the area or item searched. A sixth exception to the warrant requirement deals with Terry stops. Under the famous Terry decision, officers have a right to stop an individual if they have reasonable suspicion necessary to determine if criminal activity is afoot. If when stopping them the officer reasonably believes that the individual is armed and dangerous, officers are permitted to frisk the individual for weapons. If you detect contraband without manipulating the object, then the officer is permitted to seize this contraband as evidence of a crime. These exceptions are the main exceptions to the warrant requirement and permit law enforcement officers to conduct lawful searches absent the existence of a warrant supported by probable cause.

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Michael Vick has pled guilty to charges in Federal Court stemming from his connection to a dog fighting ring. As a result, Vick faces sentencing in Federal Court in December. In the past, the Federal Sentencing Guidelines have been mandatory. Therefore, Federal judges had little to no discretion in sentencing offenders. Depending on the offender’s prior criminal history, cooperation with the government, and other aggravating and mitigating factors, points are added and deducted to determine the length of the sentence. However, this all changed in October 2004 when the Booker decision came down from the United States Supreme Court. In Booker, the USSC made the Federal Sentencing Guidelines advisory rather than mandatory and reinstated judicial discretion in sentencing. As a result, things have changed significantly which could affect the sentence of Michael Vick. The prosecutors, as a result of Vick’s plea bargain, are recommending 12-18 months (the minimum under the Federal Sentencing Guidelines). However, because of the judicial discretion involved, Vick could receive the maximum five-year sentence. The judge in this case, Henry E. Hudson, has a reputation for being tough on crime. We will see if the Booker decision and re-emergence of judicial discretion in sentencing offenders in Federal Court affects the sentence of Atlanta Falcons quarterback Michael Vick.

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