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

The New Jersey Legislature recently approved stiffer penalties for individuals found guilty of road rage.  Individuals were previously exposed to a fourth degree offense and up to 18 months in jail.  The amendment now makes it a third degree offense and carries up to 5 years in jail.  The bill loosely defines "road rage" as including any actions or maneuvers of aggression, akin to harassment with a car (e.g. tailgating, driving at an excessive speed, weaving through traffic, etc.).

The legislative revision was contained in a bill captioned "Jessica's Law", named after a young lady seriously injured as a result of a road rage incident.  Jessica was injured when an individual who believed he was cut off weaved through traffic, causing an accident. 

Over the last 15 to 20 years as a defense lawyer, I have learned that there are simply some people out there who could be described as unreasonable, irrational, and even unstable.  Many have seen these individuals on the road waving their hands, yelling or even driving aggressively for seemingly nothing.  While I certainly agree with the revision of the statute, I have a hard time thinking that it is going to deter the type of individual who engages in "road rage". 

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Last month, a routine call to investigate a suspicious vehicle ended up resulting in seizure of approximately $250,000 of marijuana in Freehold.  A township police officer was responding to a call from a neighbor regarding a suspicious vehicle and when he pulled up to a U-Haul in the driveway,  he saw a large stash of marijuana plants apparently being moved.  On further investigation, many more plants and a marijuana production facility was discovered in the house. 

I am not naive enough to believe that small marijuana production facilities exist throughout New Jersey and Monmouth County.  However, this bust seemed to be a little more than one would anticipate.  There may be, however, an interesting issue concerning the arrest insofar as it sounds like the officer entered the house without a warrant.  A substantial portion of the weight of marijuana was comprised of the plants inside the house and they may well be excluded from the case because of a bad search.  The defense attorneys on the case will have to see how the facts unfold.

Our defense firm handles a substantial amount of marijuana charges in Monmouth County every year.  We find the prosecutors to be tough but fair.  While charges of manufacturing or distributing marijuana, or maintaining a marijuana production facility, are very serious, choosing an attorney experienced in handling marijuana charges in Monmouth County may make a big difference in the outcome of this case. 

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We previously outlined the planned elimination of the Warren County Juvenile Detention Center as a budget measure by the County.  The Freeholders had determined that it would be more cost effective to house youthful offenders at the Morris County center.  A similar proposal is now being considered by the Monmouth County Board of Freeholders.

The Monmouth County Sheriff, Kim Guadagnino, is scheduled to present a study concerning closing the Juvenile Detention Center and transferring offenders to Middlesex County.  The move has been a matter of considerable debate and one of the newly elected Freeholders was vocal in support of the measure.  Sheriff Guadagnino will be presenting a detailed report outlining the pros and cons of consolidation and the Freeholders will have to make the call on whether the jail shall be closed.  Monmouth County currently spends approximately $5.5 million annually to operate its Juvenile Detention Center.

From the perspective of a NJ defense attorney, the consolidation is unfavorable.  Aside from the logistical complications, the creation of a mini-Jamesburg is nothing to revel about.

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The 2008 Christmas holiday resulted in drunk driving fatalities and serious injuries.  Early Sunday morning, a Glassboro man slammed his vehicle into the back of a dumb truck resulting in the death of his passenger.  Chemical tests allegedly revealed a blood alcohol concentration over the legal limit, resulting in vehicular homicide charges being filed filed.

On Tuesday, another alcohol related accident occurred in Kearny.  The collision resulted in serious injuries and involved a motorist with a BAC of .19, over twice the legal limit.  Assault by Auto charges have been filed.

The holiday season is always a festive time involving alcohol. Unfortunately, this seems to result in DWI related fatalities every year.  If the toxicology stands up in cases like these, the defendants have serious jail exposure.

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Unfortunately, the poor judgment shown by Plaxico Burress may have perpetuated into another problem.  It was reported yesterday that the Totowa Police Department executed a search warrant at Burress' home and that at least two guns were confiscated, along with a cache of ammunition.  Various publications have reported that one of the firearms was a handgun.  It is presumed that Burress lacks a license for a handgun insofar as he apparently failed to possess one early this month when he shot himself in New York and it would be next to impossible to secure one in New Jersey in the interim given the pending charges. 

While I am not on a speaking basis with Benjamin Brafman, defense counsel for Plaxico, he clearly is a skilled and savvy attorney.  I could almost guarantee that he counseled Mr. Burress about the risk associated with continued possession of a handgun and the possibility of a search warrant.  It is extremely difficult then to explain why the firearm was found in Burress' New Jersey home other than to simply attribute it to a course of poor judgment.  This will undoubtedly result in a NJ gun charge if the information which has been reported is correct.  Lets hope this is the last chapter of this story.

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The New Jersey Assembly is considering an amendment to the penalties for DWI related vehicular homicide.  The bill is referred to as "Josh's Law" and proposes to increase the mandatory jail sentence to 10-20 years from 5-10 for those found guilty of vehicular homicide.  The bill was sponsored in response to the death of Josh Moren, a young man who was killed by a drunk driver possessing a blood alcohol content in excess of four times the legal limit.  

It is always sad to learn of another DWI related death.  While a life was lost, the question of incarceration is always something that needs to be fact sensitive in my judgment.  There is no question that a stiff jail sentence would be warranted when an accused is driving with a blood alcohol content of .35 but how about the high school senior with a .08% blood alcohol content and no prior history of any kind?  Do we destroy two lives to equal the score?  This is a very difficult question and I believe that the enactment of a mandatory jail term of 10-20 years will be too inflexible.  

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The NY Post posted its letters to the editor on the subject of Vito Fosella's DWI.  There have been a litany of descriptions all over the press concerning the perception of the Senator following his arrest.  He has been described as, among other things, "disgraced" and "humiliated" as a result of his DWI while in office. The letters took issue with the lack of compassion for Fosella.

I have to agree with the comments of the writers.  While a DWI is a serious offense, we find all segments of our society in our office seeking defense representation for this charge - doctors, educators, etc.  In fact, New Jersey has even had Superior Court, Appellate Division and/or Supreme Court Jurists who have been issued DWI summonses.  People make mistakes and thankfully no one was injured by the Senator.  I certainly believe that more good could have been accomplished by the Senator on this issue had he remained in office.  I am sure there are many with a much different view.  

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Traffic stops are obviously routine throughout New Jersey.  So too are allegations of "smell" or "odor" of burnt marijuana by police officers. Indeed, this unquestionably has to be the most frequent rationale for an ensuing search in our experience.  Some times what starts as a goose chase turns into nothing but in other instances, like what happened in Freehold this past week, the expedition results in major fruit.  The stop and search in Freehold this week yielded what appears to be in excess of at least one pound of marijuana.

Probable cause for a search is always a primary issue that our lawyers focus on whenever a automobile search is involved.  The classic allegation of burnt marijuana can pose obstacles but it is not impossible to overcome.  It takes careful preparation and legal research, and focused cross-examination to win these types of suppression motions.  I know that the defense attorneys at our firm get particular satisfaction from success in these cases. 

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Almost everyone in New Jersey knows what a DWI is - but a BWI or bicycling while intoxicated?  Well it is true, the offense does exist and last week a Sea Girt police officer arrested a bicyclist for the offense. The cyclist allegedly fell on his bike while stopped at a road crossing and the incident was witnessed by the arresting officer.  An ensuing investigation revealed a rather intoxicated bicyclist and resulted in summonses for DWI and an assortment of disorderly persons offenses.

Although I have heard of BWI offenses being issued, I have never had occasion to handle one.  Given the high number of drinking and driving cases we handle every year, I would have to assume that the lack of a BWI case reflects the extreme nature associated with a police officer actually filing such a charge.  I believe that most police officers have the common sense to refrain from filing such a charge for numerous reasons, including the fact that most individuals are riding their bike under these circumstances to avoid DWI. It seems a little unfair to me to penalize an inidividual for BWI.

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Things are really getting tough for immigrants.  Yesterday, I was in a local municipal court and was having some small talk with the prosecutor, whom I have known for many years.  I was advised that Immigration and Customs Enforcement (commonly referred to as ICE) was planning to make random appearances in local municipal courts in hopes of making arrests.   The intention is to approach individuals who have been issued unlicensed driver tickets and the like, and who appear to be immigrants.  

While I am sensitive to all views on this subject, I am also cognizant of what is really going on here.  The approach planned by ICE shall fail for many reasons.  The reality is that once individuals catch on to the potential for an ICE arrest in municipal court, there will be a significant chilling effect on collection of fines and appearances in response to these types of summonses.  The goal of saving the government money will, in my view, only be further frustrated when collection of fines decline.  I think we need to draw the line here.

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On December 15, 2008, the New Jersey Administrative Office of the Courts released the revisions to the Domestic Violence Handbook.  One of the primary components of the revisions involves adoption of procedures for electronic filing of domestic violence complaints and temporary restraining orders in NJ.  Another provision of note concerns uniform rules for paternity testing in conjunction with domestic violence proceedings. 

The number of domestic violence cases handled by our offices every year seems to grow.  We suspect that this may be a function of the increasing number of these cases filed every year.  The electronic filing of complaints and TRO's should make the process easier and shall probably translate in even more filings.  It will remain to be seen what collateral attacks and/or defenses shall arise by virtue of this process (e.g. evidence considered prior to filing).  

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The Spring Lake Police Department made several arrests this past week as a result of a physical altercation involving minors from the borough, Sea Girt, Manasquan and Brielle.  A large group of the juveniles were fighting in the early morning and the incident resulted in at least one juvenile being hospitalized. Alcohol was apparently involved in the incident.  Juvenile Charges are pending for assault, possession of alcohol underage, and vandalism.

The charges in this case will undoubtedly make their way to Monmouth County Superior Court.  Juvenile cases are presided over by Judge Iadanza and Judge McGann, and neither are a push over when it comes to kids crossing the line.  You can anticipate some differed dispositions for the lesser players and probation, at a minimum, for those involved in anything serious (e.g. aggravated assault). 

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New Jersey's legislature is considering a proposal to legalize marijuana for medical use.  NJ would be the 14th state to approve marijuana usage in this manner.  A similar proposal was advanced several years ago.  It is unclear what the perimeters of the bill would be, for example, whether it provides for distribution facilities like those that exist in California.

It is clear from the comments around the Internet that there are individuals with extreme views in opposition to the bill.  I genuinely do not see how legalizing marijuana for medicinal use could promote crime as is posited by those opposing the bill.  I would rather view the situation as if the drug involved was no different than any other approved medication.  Only time will tell what happens on this one given the fierce opposition.

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On Tuesday, the Elizabeth police made an arrest for distribution of small plastic bags commonly used to package marijuana.  While the case is somewhat unorthodox, there were approximately 4.0 million bags seized.  It was believed that the convenience store in question was the primary source for packaging materials in Elizabeth.  The police also seized digital scales, grinders, and approximately $66,000 in cash.

We have occasion to handle quite a number of marijuana charges in Union County Superior Court, as well as the municipal courts throughout the County.  While the arrest may be a legitimate one, I have a hard time believing that the arrest was intended to yield paraphernalia only.  The effect of the arrest on Marijuana distribution in Elizabeth and Union County probably will be neglible unless it yields cooperation, which is always a possibility.

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The Monmouth County DWI Task Force has scheduled a roadblock for this evening on Route 9 in Marlboro.  Drivers shall be asked to turn into the NY Sports Club and shall be subject to sobriety testing if selected.  The roadblock shall run from 11 p.m. to 3 a.m. 

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The Red Bank Police Department shall conduct a checkpoint (a.k.a. roadblock) which is intended to target drunk drivers.  The checkpoint shall be stationed on Newman Springs Road and shall be in effect from 11:00 p.m. to 3:00 a.m.  Drivers shall be subject to random stop at the checkpoint.

Checkpoints such as this one in Red Bank are set up at locations which have shown a higher incident of dwi arrests than elsewhere in a municipality.  Newman Springs Road undoubtedly falls within this category as it is basically the main roadway in and out of the restaurant and club sector in downtown Red Bank.

We appear in Red Bank Municipal Court all the time as it is the location of our main office.  We anticipate that there may be arrests made this evening although we hope this blog helps to reduce the numbers.

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There appears to be a significant trend for counties to consolidate juvenile detention facilities.  I have heard many initiatives and rumblings in this regard, and now we know this effort is already in place.  The Star Ledger reported this week that Morris County Juvenile Detention Center is planned to be a regional juvenile detention facility.  Hunterdon County is already in the process of sending youth offenders to the facility and Warren County has the same plan. 

It seems to me that so long as the character of the Counties are similar, there should be no problem in consolidating the jails.  The situation is much different when you are talking about dramatically different demographics in terms of prisoners.  My experience is that it may not take as much to get placed in juvi in, for example, Ocean County, as compared to Essex County.  The consolidation of the detention facility in a situation like this might result in significantly harder offenders being detained in the same facility as much lower grade offenders. 

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The Wall Township Police Department has indicated that a holiday push on DWI enforcement has been placed into effect. The campaign is referred to as "Over the Limit, Under Arrest", and shall remain in force through January 2, 2009.  The campaign shall include sobriety checkpoints and what the department refers to as "saturation patrols".  The program is being administered in conjunction with a national effort, presumably with some source of federal funding, to reduce drunk driving in Wall Township and elsewhere.

The DWI enforcement is quite robust in Wall Township already with arrests of 100 or more annually.  This may explain why our dwi lawyers appear in the Court almost every week.  One would expect this trend to increase given the focus the department is undertaking to make DWI arrests in Wall.

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A Freehold Township man was arrested for suspicion of vehicular homicide on October 7, 2008.  Since that time, he has been involved in a series of alcohol related altercations and/or incidents, culminating in charges of simple assault on his mother.  Alcohol has been a common thread in all of the incidents. 

A Monmouth County Superior Court Judge was asked to increase the suspect's $600,000 bail.  The judge ordered, however, that the defendant either admit himself into a longterm alcohol treatment center or be subject to an increased bail of $1,000,000.  The defendant opted for the former although his Monmouth County criminal lawyer was careful to point out that the entry into rehab should not be construed as an admission of guilt to any of the charges.

We often see first hand the negative effects of alcohol on individuals when they are exposed to the stress of a looming jail sentence.   There obviously is not justification for this conduct but it is easy to see how things like this happen.  Defense counsel better have something up his sleeve or this gentlemen may be looking at signficant jail time given his failure to learn from his mistakes.

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The slumping economy has apparently resulted in more Divorced Couples Living Together.  One would expect incidents of domestic violence to escalate in New Jersey if this information is accurate.  Arguments are bound to crop up, for example, what happens when an ex-spouse starts dating?  This is obviously the extreme but these types of scenarios will have to be dealt with diplomatically, otherwise, we are going to have a flood of restraining orders and domestic violence complaints.

It is sad that financial stresses have gotten so bad as to mandate divorced couples residing with one another.  Our criminal defense lawyers see the negative effect of forced interaction between estranged spouses almost every day.  We can only hope that the financial realities for continuing to live together temper behavior or families will be further damaged.

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The New Jersey State Police highway fatality statistics are in and the numbers have significantly declined.  In fact, there was in excess of a twenty percent reduction in the roadway fatilities in Monmouth County and Middlesex County, and an approximately fifty percent reduction in Ocean County.  The total fatalities statewide were 724 in 2007, as compared to 547 drivers and passengers in 2008.

There is no doubt that a number of measures were undertaken this year to insure that the fatalities were reduced.  In particular, the New Jersey Administrative Office of the Courts and/or Attorney General's Office adopted strict rules prohibiting amendments of traffic tickets for probationary drivers.  They have also sought heightened enforcement against this class of drivers based on several highly publicized fatalities in prior years. 

My observation is that there are a number of factors which effected these figures including the reduction in driving which has taken place based on higher fuel costs and the declining economy.  Irrespective, it is nice to see that lives were saved this year.

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Laurick motions are common in New Jersey when an individual faces incarceration for a pending third or subsequent offense of DWI.  The Laurick opinion generally allows relief from incarceration provided the individual was unrepresented in one or more of the prior DWI cases.  The rationale for the rule is basically that a knowing and voluntary plea cannot be elicited absent representation by an attorney.  An obstacle confronted by NJ DWI Defense Lawyers in obtaining relief under Laurick has always been the resort of some municipal court judges to the five (5) year limitation period for seeking post-conviction relief.

In State v. Bringhurst, the NJ Appellate Division recently held that although the five year time bar to obtaining post-conviction relief applies to Laurick applications, the rule can routinely be overcome by demonstrating that the petition was not the result of neglect.  Insofar as a defendant typically does not realize what occurred or the need for relief until he or she is facing a situation of potential incarceration, this requirement shall customarily be satisfied.  It must be kept in mind, nonetheless, that the Court held that the petitioner for post-conviction reiief must make a showing of probable success under the facts of his case (referred to a prima facie case) before a conviction can be vacated.

We file many post-conviction relief applications every year.  The clarification provided by Bringhurst should provide more predictability and uniformity when we file these applications.

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The Englishtown Police Department is considering layoffs of police officers because of financial constraints.  This is honestly something which I cannot recall happening in my 17 years of legal experience.  Lets hope the municipal board in Englishtown forgets this thought.

In my experience, actions by Boards which adversely effect the police are met with one of two results. The cops either stop writing tickets in retaliation or do just the opposite in hopes of getting the attention of taxpayers. Either result makes for unpleasantries.  I am sure there are other areas that can be trimmed before laying off cops.  

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The New Jersey Appellate Division issued its opinion in State in the Interests of P.M.P. on Monday. The case involved the issue of whether it was proper for county investigators to interrogate a juvenile who had been arrested for sexual assault but who was already represented by counsel in a separate matter.  The suspect provided a full confession during the course of the interrogation and his attorney sought to invalidate the confession. In ruling on this issue, the Trial Court found that it was improper for the questioning to take place without counsel being present.  

The Appellate Division overturned the Trial Court and concluded that the confession was properly admissible against the Juvenile.  In reaching this conclusion, the Court found the fact that the juvenile knowingly and voluntarily waived his right to counsel to be significant. The Court also reasoned that juvenile delinquency is a different process with different objectives such that the rule which might apply to adult criminal defendants in a similar position need not be applied in the context of a juvenile defendant.

I find the decision in this case somewhat alarming.  The case has opened the door to a rather scary scenario where juvenile defendants can be interrogated without counsel notwithstanding full knowledge that he is represented by counsel in an independent case.  The New Jersey Juvenile Defense Lawyers at our office will continue to apply the philosophy that children should be afforded greater protection than adults and that the decision in this case is therefore more of a reflection of unique facts rather than a general proposition of law to be applied in every case.

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