New Jersey Criminal Defense Attorney Blog
James S. Friedman, LLC
Articles Posted in Municipal/Town Courts
State v. Robertson – NJ Supreme Court Clarifies Standards for the Stay of the Suspension of a DWI Defendant's Drivers License Pending Appeal
March 21, 2017 | By James S. Friedman, LLC
The most onerous part of the sentence in most, if not all, DWI cases is the license suspension. The suspension can range from seven months for a first offense to 10 years for a third offense. Because so much of New Jersey life revolves around the ability to drive, virtually every DWI client focuses first and foremost on the loss of their driving privileges. Many DWI defendants choose to appeal their conviction and sentence, and trial counsel can ask the sentencing court to stay the sentence, including the license suspension, pending appeal. In State v. Robertson, decided March 8, 2017, our Supreme Court addressed the standard for a stay pending appeal at two stages. The first is a stay pending appeal from the municipal court to the Law Division of the Superior Court for a trial de novo. The second is a stay pending appeal from a trial de novo in the Superior Court, Law Division, to the Appellate Division.
Robertson had a BAC (blood alcohol concentration) of .13. He was convicted of a first offense DWI and, as part of his sentence, his license was suspended for seven months. The municipal court stayed the license suspension for 20 days to allow Robertson time to commence an appeal. After the trial de novo in the Law Division, the court found the defendant guilty and imposed the same sentence. Defense counsel sought to continue the stay of the license suspension pending further appeal, but the State opposed the request. The Law Division judge granted the application, providing the defendant filed his appeal with 10 days.
On further appeal, the Appellate Division observed that both of the lower courts stayed the license suspension pending appeal "without providing any statement of reasons." The Court sought guidance for the standard for a stay in a DWI case in existing case law, stating that if a stay is granted, driving may be limited to such activities as employment, or conditioned upon the installation of an ignition interlock device among restrictions. The Supreme Court granted defendant's petition for certification so as to address an issue of significant public importance concerning the standards for a stay of sentence in a DWI case. Continue reading ›
By James S. Friedman, LLC
Posted in: Motor Vehicle Offenses and Municipal/Town Courts
Another Hurdle for Certain DWI Defendants – Visa Revocation
July 24, 2016 | By James S. Friedman, LLC
DWI cases can be difficult and challenging under the best of circumstances. Careful discovery review and analysis is crucial to any positive outcome. First, the defense attorney needs to have a thorough understanding of the standard battery of field tests that police employ in assessing drivers suspected of operating a vehicle while under the influence of alcohol. These tests include the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One-Leg-Stand test. Each of these tests must be administered properly, and the steps the arresting officer is supposed to follow, including the instructions given and the subject's performance, should be clearly outlined in the discovery that the State provides in connection with the case.
Further, cases involving alcohol typically involve a breathalyzer test. Here again, an officer certified to administer the test must do so following a relatively long and complex list of testing protocols. The machine and chemicals used in performing the test must also pass muster, and the related documentation must be provided to defense counsel.
This brief description of the steps the State must follow in convicting someone for DWI shows that the goal is to document the basis for the offense as thoroughly as possible so as to raise the likelihood of a conviction to the point where it can be a foregone conclusion. Defense counsel must therefore work diligently to understand the paperwork that the State provides in support of its case, and make appropriate motions and retain required experts where necessary. Continue reading ›
Updated: July 24, 2016 2:33 pm
Don't Assume A DWI Must End With A Guilty Plea
April 24, 2015 | By James S. Friedman, LLC
Any New Jersey Criminal Defense Attorney who practices regularly in our State's Municipal Courts handles clients accused of DWI (Driving While Intoxicated/Driving Under The Influence). While DWI clients charged with a second or third offense frequently decide to proceed to trial because of the stakes involved, the first offense cases – which account for the majority of DWI matters – frequently end with guilty pleas, and the attorney's function is simply to make sure that only the mandatory minimums penalties are imposed.
I recently had a first-offense DWI that was far from the norm. First, the case did not involve alcohol. My client was taking prescribed medication, had a bad reaction to it while driving, and was pulled over, tested and charged. The breathalyzer reading was zero. Her charge was based on officer observations and her failure to pass the field sobriety tests. Because the case involved drugs as opposed to alcohol, the State relied heavily on a "Drug Recognition Expert". Simply put, this is an officer who has been trained to determine whether someone is drug-impaired based on their observations of the subject's behavior and mannerisms. The Drug Recognition Expert prepared an expert report that was included in the discovery. The case involved State troopers, as opposed to local police officers. (For those of you who are wondering, my client's doctor specifically told her that the medication would have no effect on her ability to drive.)
The discovery read the way DWI discovery typically reads, and included all of the sentences and phrases that attorneys doing this work can eventually recite verbatim. But this turned out to be the root of the State's problem in this case. For purposes of this article, my client's name was Mr. Jones. The narrative prepared by the arresting Trooper in my client's case referred to Mr. Smith, as well as my client. The Drug Recognition Expert's report referred to Mrs. White, as well as my client. It became clear after reviewing the discovery that the officers who worked on this case and prepared the paperwork simply did a "cut and paste" from reports prepared in other cases, but failed to proofread their work and change all of the names so that the documentation referred only to my client. Using these errors, I was able to negotiate a plea to a reduced charge which carried a must shorter suspension and sharply reduced fines and penalties. Continue reading ›
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State v. Nyema and the Proper Basis for an Investigatory Stop January 15, 2021
State v. Hemenway – Supreme Court Defines Standard for Weapons Seizure in Connection with Issuance of Temporary Restraining Order September 7, 2020
State v. Andrews – Loss of Protection for Defendant's Cell Phone Contents August 30, 2020
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