Jersey DWI & Criminal Defense Law Blog

Juvenile Arrested in East Brunswick

Tom Martin — Wed, 20 Jan 2010 16:18:48 -0500

A juvenile, aged 12, from Old Bridge, NJ was arrested by police Friday after the juvenile allegedly flashed a knife and threatened fellow juveniles during a dispute at the Brunswick Square Mall, which is located close near the East Brunswick Municipal Court..East Brunswick Police Officers were dispatched to the Barnes and Noble parking lot around 9:25 p.m., and located a large group of juveniles. The police investigation revealed that the juvenile-suspect allegedly brandished the knife and pointed it at a 15-year-old boy and a 14-year-old girl. The suspect was arrested and charged with unlawful possession of a weapon and terroristic threats. The juvenile was then released to a guardian.

The article did not say under what terms or conditions the juvenile was released. All juvenile matters are heard by a juvenile referee if the charges are not that serious, otherwise they are hear in the Family Division-Juvenile part in the county the suspect resides or where the offense was committed. The Middlesex County Prosecutor's Office will likely charge the juvenile with several counts of N.J.S.A. 2C:12-3, terroristic threats-a third degree offense, N.J.S.A. 2C:39-5(d) unlawful possession of a weapon- a fourth degree offense and N.J.S.A. 2C:39-4(d), possession of a weapon for an unlawful purpose-a third degree offense.

It is unclear whether the juvenile suspect was acting in self-defense, which would provide him a legal defense to some charges or simply was acting foolishly.

By: Thomas H. Martin, Esq.

Thomas H. martin, Esq. is a Freehold criminal attorney who handles criminal, juvenile, domestic violence, DWI and all traffic offenses throughout the State of NJ.

www.jerseycriminallawyer.com

DWI-Twenty Minute DWI Defense Altered

Tom Martin — Wed, 13 Jan 2010 15:29:36 -0500

Previously, in a DWI case involving the Alcotest machine, the police officer-Alcotest operator had to observe the arrestee for twenty minutes prior to administering the DWI breath test to the accused. The reason was to make sure that the arrestee didn't burp up any mouth alcohol or have any foreign substances in their mouth which would falsely elevate their DWI reading and lead to a false conviction.

Under State v. Biscardi, a new Appellate Division case, the court ruled consistent with a more recent Court decision, that the Prosecutor could use any qualified witness to testify that the twenty minute observation period of the accused had been met prior to administering the Aloctest.

This ruling is in direct contradiction to the seminal ruling in State v. Chun, which specifically held that the "operator" had to be the individual who observed the arrestee for twenty minutes prior to the Alcotest being administered. However, as long as the integrity of the readings from the Alcotest can be validated and their integrity ensured, I do not anticipate the Supreme Court adhering to the present "operator" only requirement, when a Prosecutor can demonstrate that the observer was a trained officer who watched the accused for twenty minutes.

A Prior Refusal To An Alcotest Will Enhance A DWI For Sentencing

Tom Martin — Thu, 07 Jan 2010 16:55:58 -0500

January 7, 2010 - Today, the Superior Court of NJ, Appellate Division, ruled that a prior conviction for refusing to submit to a breath test or Alcotest (N.J.S.A. 39:4-50.2) , can enhance a current DWI (N.J.S.A. 39:4-50) for sentencing purposes. To clarify this point, the defendant in State v. Ciancaglini, had a 1979 DWI conviction, a 2006 Refusal Conviction and a current 2008 DWI charge. The defendant's position was that she should be treated as a first offender since her only prior DWI conviction was over 10-years old and that a prior refusal never enhanced a DWI sentence. The Appellate Division held that the defendant must be treated otherwise. They treated her as a third offender based upon as the refusal conviction being regarded as a DWI conviction for sentencing purposes.

Part of the Court's reasoning in this new case was based on State v. Cummings, which was a 2005 Supreme Court case involving the standard of proof required by a prosecutor to prove a person guilty of a refusal. Prior to Cummings, the standard of proof necessary for a conviction of a refusal (considered to be a civil offense in nature as opposed to quasi-criminal) was by a lesser standard, called a preponderance of the evidence; not proof beyond a reasonable doubt, required for DWI. As such, it would be unfair to use a refusal to enhance a DWI prior to Cummings because the standard of proof for refusal was far less than the standard of proof for a DWI. In Cummings, the Court ruled that a prosecutor must now prove a person guilty beyond a reasonable doubt of refusal; same as a DWI. As such, both offenses now have the same standard of proof.

However, I believe this reason is flawed. By way of example, a person might not be under the influence of alcohol for a DWI, refuse an officer's request for a breath test, and still be found guilty of the refusal charge. Thereafter, they can subsequently be charged for their first DWI (assuming they are driving drunk at a later date), which will be treated as a second DWI for sentencing purposes because their prior refusal will now enhance the present DWI. The tragedy lies in the fact that the person never had a DWI, was legally sober previously, but is now being treated as a second offender for DWI sentencing.

The story gets more confusing. Let's suppose a person is charged in incident number one with DWI and Refusal. They subsequently are found not guilty of the DWI, but are found guilty of refusal at a trial. Next time, in incident number two, they are stopped for DWI (let's hope the person has learned to get a designated driver by then) and are ultimately found guilty. The Court will create a "legal fiction" and treat this person as a second DWI offender; despite the fact that another Court previously found, as a matter of law, that the person was not guilty of the earlier DWI. I am hoping this case will get to the Supreme Court of NJ and they will overrule the Appellate Division and the Municipal Court 's position. Lastly, if you have a refusal prior to the decision in Cummings, I as a DWI attorney would argue that your prior refusal was found under the lower standard of proof (preponderance) and cannot enhance the DWI.

DWI Dismissed For Failure To Move Case In A Speedy Matter

Tom Martin — Thu, 17 Dec 2009 15:13:06 -0500

12/14/09--In State v. Tsetsekas, the Appellate Court held that a DWI trial delay of 344 days constituted a failure to provide a speedy trial to the defendant and warranted a dismissal of the DWI charge. The speedy trial violation resulted because of numerous and unnecessary Court appearances by defense counsel--partially caused by the town prosecutor being unprepared several times and numerous failures to appear by the State Police witnesses. In this DWI case, the defense appeared seven to ten times at court and the DWI case was continually delayed because evidence wasn't turned over to the defendant or the State Police failed to appear in Court.

This case is a refreshing change for DWI attorneys such as myself who are continuously pressed by Courts to resolve our DWI cases in the sixty days preferenced by the Administrative Office of the Courts. It should be noted that it is still a tough hill to climb to succeed in a speedy trial context, but it can be done where the prior appearances and reasons for the Court postponements are documented.

www.jerseycriminallawyer.com

No Point Ticket or No Point Offense Case Ruled on By Court

Tom Martin — Tue, 10 Nov 2009 11:47:32 -0500

November 10, 2009-Today, our Supreme Court held that the statute NJSA 39:4-97.2 (the "no point" ticket) permits a motor vehicle operator to avoid points on his or her third or subsequent offense, if five years have elapsed since the prior offense.

This includes drivers who seek a no point ticket on their third or subsequent offense, when the third or subsequent offense occurs five years after the prior offense. This is always how I read the statute to apply, but the Appellate Division and the Motor Vehicle Commission agreed otherwise.

In the case of State v. Patel, the case that gave rise to all this craziness, Patel had taken a third no point offense under N.J.S.A. 39:4-97.2 within five years of her second. Thereafter, she took her fourth offense five years after her second. She argued that her fourth offense should have been a no point ticket since five years had elapsed since her second offense. The Appellate Division and MVC disagreed because Patel had taken her fourth within one year of her third. This makes sense, however, the Appellate Division went a step further and said even if her third offense occurred five year after her second, she would not be entitled to the break.

Thankfully, the Supreme Court got it right in this attorney's opinion. The moral of this story is that you should always seek professional advice or representation prior to going to Court. Further, your attorney of record should order a motor vehicle abstract to be aware of any prior pleas you have had to a no point offense. If you have any questions, please do not hesitate to contact Thomas H. Martin, Esq. or reach him at his website at www.jerseycriminallawyer.com.

Union Beach DWI & Manalapan DWI Checkpoint

Tom Martin — Fri, 23 Oct 2009 15:27:06 -0500

October 23, 2009- Monmouth County drivers need to be alert that a task force from Monmouth County will be performing a DWI roadblock in Manalapan and a DWI checkpoint (checkpoint & roadblock are used interchangeably) in Union Beach this weekend to procure whether drivers are operating under the influence of drugs and/or alcohol. Those suspected of intoxication or being under the influence, will be arrested for DWI.

The checkpoint in Manalapan will be in effect from11:00 p.m. tonight to 3:00 a.m. Saturday on Route 9 in Manalapan. The police will be looking to arrest violators and charge them with a Manalapan DWI. They will direct vehicles from the southern lanes into the Sun Bank parking lot to determine drivers' sobriety.The second checkpoint will be in effect from 11:00 p.m. Saturday until 3:00 a.m. Sunday on Route 36 in Union Beach. All accused will be charged with a Union Beach DWI. They will order vehicles from the western lanes into the Holy Family Church parking lot to check sobriety.

If you are charged with a Manalapan DWI or Union Beach DWI and have to appear in the Manalapan Municipal Court or the Union Beach Municipal Court, please feel free to contact my law office to answer your questions on this specialized area in the law. As a Manalapan DWI lawyer and Union Beach DWI lawyer I can alleviate your fears and answer your questions.

Underage Drinking Law Amended-NJSA 2C:33-15

Tom Martin — Tue, 06 Oct 2009 16:59:20 -0500

The governor has signed into law a change to the underage drinking law codified under NJSA 2C:33-15. The new change to the underage drinking law will provide statutory immunity to certain underage persons who drink alcohol while under the legal age. NJSA 2C:33-15 typically, prohibits either the drinking or possession of alcohol by a person under the age of 21. The offense is a disorderly persons' offense and requires a minimum fine of $500.A conviction also mandates a six-month suspension of driving privileges when the offense arose in a vehicle. Under the amendment, immunity will apply if:

(1) one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption;

(2) the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator;

(3) the underage person was the first person to make the 9-1-1 report; and

(4) the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene. The underage person who received medical assistance also shall [also] be immune from prosecution under NJSA 2C:33-15..

The change was implemented to remove the chilling effect and catch 22 for juveniles and young adults who want to get help for their peers, but fear legal consequences for drinking under the age. Many towns, Ocean Township by way of example, have their own municipal ordinances and or borough ordinances regulating this conduct. A Municipal ordinance can be punishable by a maximum of up to ninety days in jail and a $2000.00 fine. The real issue will be whether these state immunities will apply to these lesser township offenses. I would argue that the town is bound by the statute; time will tell.

Boxing Gloves Hanging From Mirror Leads To Arrest

Tom Martin — Thu, 20 Aug 2009 17:48:15 -0500

On July 31, 2009, the Appellate Division in State v. Barrow, held that an ornamental pair of small boxing gloves, hanging from the defendant’s rear-view mirror gave a police officer the necessary reasonable and articulable suspicion to perform a motor vehicle stop of the defendant’s car. The stop of the defendant’s motor vehicle led to an arrest for possession controlled dangerous substances.

The New Jersey Statute, codified as N.J.S.A. 39:3-74, reads“[N]o person shall drive any vehicle so constructed, equipped or loaded as to unduly interfere with the driver's vision to the front and to the sides.”

What this means is that you the driver, is legally subject to being stopped for anything that obstructs your windshield. This opinion provides great ammunition for police officers to stop any driver they want who is remotely in violation of the statute regardless of how proper the driving conduct is. However, the State and Federal Constitution still require probable cause to search a person's vehicle after they have been stopped for a traffic offense.

www.jerseycriminallawyer.com

By: Thomas H. Martin, Esq.

Deportation and Immigration Consequences of a Guilty Plea

Tom Martin — Thu, 20 Aug 2009 17:28:52 -0500

In State v. Nunez-Valdes, the Supreme Court of New Jersey recently permitted a convicted defendant to withdraw his guilty plea because he had not been properly advised of the immigration consequences of his plea to a crime. As an attorney representing any defendant, this opinion serves as a "wake up call" of the importance of advising your non-citizen clients of the immigration consequences of convictions. One's failure to do so can result in a legal malpractice case against you and a Post Conviction Relief Motion claiming that (you) were ineffective in your assistance of counsel.

I have had to file a Post Conviction Relief Motion on behalf of a client whose prior attorney told her she would not face deportation at the time of her plea. Unfortunately, after returning from a trip to Poland, a red flag was raised upon her reentry. After a hearing before a Superior Court Judge, which included expert testimony from an immigration attorney and honest testimony from her prior attorney, the Judge granted her the right to vacate her plea. Before entering into a plea bargain to an offense that wouldn't be a crime, I still had her consult with the immigration attorney.

It is important to ascertain your client's legal status so that you can advise them properly of the consequences for pleading guilty. One resource you can use to assist you is a reference chart available at www.immigrationdefenseproject.org. Click on Resources and you will find the NJ chart. If you are not certain and you want to assure your client and yourself of the proper advice, you may want to consider having your client engage in a consultation with an immigration attorney.

Sea Bright DWI Roadblock and/or Checkpoint

Tom Martin — Thu, 13 Aug 2009 15:55:48 -0500

SEA BRIGHT — A joint task force made up of members from the Monmouth County DWI Task Force and Sea Bright Police Department will conduct a roadblock this weekend to detect drivers under the influence of alcohol and/or drugs. If arrested for driving while intoxicated, you can be charged with N.J.S.A. 39:4-50 (DWI), N.J.S.A. 2C:35-10 (possession of a cds) and/or N.J.S.A. 39:4-49.1 (possession of cds by the operator of a motor vehicle).

The roadblock will run between 11:00 p.m. Saturday evening and run through 3:00 a.m. Sunday on Route 36. The members will direct vehicles from the northbound lanes into the Peninsula House parking lot to determine drivers' sobriety. The reason the Police post the whereabouts of these DWI stops is because the police are required to follow a strict protocol or the charges can be dismissed against the defendant.

By: Thomas H. Martin, Esq.

www.jerseycriminallawyer.com

Juvenile Stopped for Municipal Ordinance, Curfew Violation, Can Be Legally Searched

Tom Martin — Tue, 21 Jul 2009 15:32:36 -0500

In a new case that came down before the Appellate Division, a juvenile who is discovered on the streets, in violation of a town curfew ordinance and who cannot provide any identification, may be arrested and detained until identification can be produced and the juvenile released to the custody of his or her parents. The case is titled, State in the Interest of R.M. Further, a juvenile who is arrested and charged for a curfew violation may be searched incident to arrest before being transported to the police station.

In this case, the juvenile was stopped for a curfew violation and when the police searched him pursuant to the search incident to arrest exception to the warrant requirement, they found a stolen wallet. The juveniles were found walking on the street at 2:00 a.m. and the town's curfew was 11:00 p.m. Clearly the juveniles were in violation of the ordinance. Therefore, the Court held that the juveniles could be arrested under the authority of N.J.S.A. 2A:4A-31(b)(2). This statute authorizes a law enforcement officer to take a juvenile into "short-term custody" if he "has reasonable grounds to believe the juvenile has left the home and care of his parents or guardian without the consent of such persons."

The next question, which will not be decided by this Court since it wasn't argued, is whether the State can Constitutionally impose curfews upon minors. My guess is that under the protection of minors, a State or United States Supreme Court would uphold that the state has a rational basis in imposing a curfew and thus it would be deemed Constitutional.

Lab. Tech. In N.J.S.A. 2C:35-10, et al Cases Required To Testify

Tom Martin — Thu, 25 Jun 2009 13:54:55 -0500

In a narrowly decided opinion of 5-4, our United States Supreme Court ordered that laboratory reports related to the testing of drug possession charges under N.J.S.A. 2C:35-10, N.J.S.A. 2C:35-5, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-7.1 (and all other drug charges) at a police laboratory are deemed testimonial evidence within the meaning of the confrontation clause of the Sixth Amendment.

The significance of this opinion is that a criminal defendant has the right at trial to confront the author of the laboratory. Previously, the prosecutor could just enter the laboratory certificate into evidence at trial as long as an objection wasn't made by the defense attorney 10 days after the receipt of the State's proffer; thus barring a defendant the right to question the lab. tech. as to his or her methodology.

This continues a line of cases expanding the confrontation clause that began with Crawford v. Washington, 541 U.S. 36 (2004). For examples of New Jersey law which foresaw the United States Supreme Courts holding see, State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006) (Lab results of a DWI Blood test); State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (Requiring testimony of person who drew blood sample from intoxicated defendant) and State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) (requiring the defendant to alert the prosecutor that the lab tech
will be required to testify in court).

This is an expansion of the law and makes the State's burden of proof a little harder to establish logistically as well as substantively. It allows the defense to attack the nurses in blood drawn, DWI cases, blood drawn drug cases and the lab tech in drug possession cases.

Howell DWI Roadblock

Tom Martin — Fri, 12 Jun 2009 15:45:37 -0500

June 12, 2009---HOWELL — A DWI Task force from Monmouth County in conjunction with the NJ Division of Highway Traffic Safety will hold a roadside sobriety, DWI checkpoint from 11:00 p.m. through 3:00 a.m. Saturday on Route 9 north. The cops will pull vehicles from the northbound lanes into the Regal Plaza parking lot to determine driver’s sobriety.

There are very strict procedures for the police to follow in order for the roadblock to be considered legal for purposes of detaining motorists. If the police fail to follow the guidelines, the accused's DWI may be ripe for dismissal. If you have any questions, I can be reached through the contact information on my website

www.jerseycriminallawyer.com

Idling In Car DWI Charge Thrown Out

Tom Martin — Thu, 28 May 2009 10:12:31 -0500

A critical element in every DWI case is proof of operation of the vehicle by the defendant. To lay people, accused of DWI, one would think that operation meant "actually being seen driving the car." Unfortunately, this isn't the case.There have been many reported cases where courts have found operation where the keys and sometimes the defendant weren't even in the car at the time the Police started their investigation into the DWI.

A recent Appellate Division case, helpful to the accused, has swung the pendulum back somewhat in favor of defendants--in the right factual scenario. The Appellate Division has held that idling in your car while intoxicated does not constitute drunk driving. Specificailly, in the case of State v. Putz, the Court held, that the being drunk while seated behind the wheel of a car, even with the motor running and the parking brake off, can't carry a DWI conviction without proof of intention to drive. The Appellate Division held that the trial court ignored credible evidence that Putz, who was discovered sleeping in his idling vehicle after midnight, had no intent to move the vehicle. This is good news for the accused.

However, the driving while intoxicated cases are always a tough battle. As an aside for legal scholars, this is yet another helpful case to defendants. Yet, it will be an unpublished case; thus allowing Judges to consider it, but not be bound by its holding. Lately, it seems that every unfavorable DWI case is published, while the favorable ones go unreported. However, the Judges in this case should be commended for taking a position against a long line of cases which have found the critical element of operation even where a person did not have the keys in the ignition.

For more on DWI see, www.jerseycriminallawyer.com

DWI Checkpoint - Roadblock in West Long Branch

Tom Martin — Fri, 15 May 2009 15:25:14 -0500

May 15, 2009-WEST LONG BRANCH — A DWI task force from Monmouth County will be on the hunt for drunk drivers in West Long Branch this evening. The DWI checkpoint or drunk driving roadblock will be in existence from 11:00 p.m. tonight until 3:00 a.m. Saturday along Route 36. The task force and officers from the West Long Branch Police Department will direct vehicles from the westbound lanes into the Monmouth Park Corporate Center parking lot.

Now that summer is almost upon us, you can expect to be subject to DWI roadblocks pretty much every Friday night. The United States Supreme Court has held that these roadblocks are Constitutionally legal provided the police follow certain required mandates. In the event you ar earrested and charged with DWI and/or Refusal, contact an experienced attorney at once. If you would like to speak more on this subject, post a comment or contact my office either through this site or www.jerseycriminallawyer.com.

Can I get PTI (a/k/a Pre Trial Intervention)

Tom Martin — Wed, 13 May 2009 14:30:25 -0500

Pre Trial Intervention or P.T.I. is a program that allows certain defendants charged with crimes and/or felonies to be diverted into a special supervisory program ranging from one to three years in length. If they apply and are accepted by the criminal case manager and prosecutor, then they are admitted into the PTI program. Even if they are not accepted by the aforementioned parties, the defendant can still file an appeal with a Judge in order to try and be admitted into PTI. The great strength of PTI is that if a person successfully completes PTI, they will not have a criminal record. Six months after the completion of PTI, a person can file an application to have his or her record of arrest and entry into PTI expunged. Now more than ever, people are being permitted to apply to PTI.

For example, in a recently decided case involving limitations on applying to PTI, titled State v. Green the Appellate Division ruled that It was error for the Criminal Division manager to refuse to allow a defendant an opportunity to submit an application for entry into the pretrial intervention program

The Court ruled that pursuant to NJRE 3:28 and the PTI guidelines, a defendant shall be permitted to apply for PTI. This is true even where the application is unlikely to be granted due to the prosecutor's opposition. Prior to this case, it was always the belief that a defendant had to have the express consent of the prosecutor to be able to be permitted to apply to PTI where the charges were a second degree offense or greater. This will allow many people to apply to PTI who were previously barred from doing so. If you have any questions regarding this or any case, please contact the writer via here or his website of www.jerseycriminallawyer.com.

Witness Intimidation May Lead to Permitting Inadmissible Evidence At Trial

Tom Martin — Fri, 01 May 2009 17:41:38 -0500

In a case (State v. Byrd) decided by the New Jersey Supreme Court earlier this month, the Supreme Court proposed a new change to the New Jersey Evidence Rules which would provide a new hearsay exception; commonly referred to as “forfeiture-by-wrongdoing.” Under the exception, an out-of-court statement made by a witness who fails to testify at trial will result in the statements being admitted at trial; if the witness’ failure to appear was due to the influence of the defendant. In proposing this change, the Court noted the problem of witness intimidation in cases involving the prosecution of gang members, etc.

The reason for the rule is to punish defendants who seek to gain an unjust advantage at trial by eliminating state's witnesses who could be damaging to the defense case. It is also put in place to deter defendants from harming victims and witnesses. The direct damage to defendants results when the Court permits the out-of-court statements of a witness/victim to be admitted at trial. Since a defense attorney cannot cross-examine a written or video statement (for obvious reasons), the defense loses the opportunity to cross-examine the statement maker as to their motives for making the statement, their ability to identify or hear the defendant at the time of the event, the lighting conditions, etc ,as to what they perceived or did not perceive. It will be interesting to see if and when this proposal is adopted and the hearings as well as the standard of proof needed to be overcome by the Prosecutor to establish wrongdoing by a defendant and the admissibility of evidence that otherwise would not have been permitted at trial.

A Defense To Your DWI Case

Tom Martin — Tue, 10 Feb 2009 12:23:14 -0500

One defense that should be explored by every attorney on behalf of their client is the "twenty minute defense." In the seminal DWI case, State v. Chun, dealing with the new Alcotest machine for breath testing, the Supreme Court stated that the person who administers the breath test in your DWI case must observe you for twenty minutes prior to administering the test. This is to ensure that you have not hiccuped or regurgitated residual alcohol into your mouth; which could skew the breath results.

While I personally believe that this twenty minute observation period is required by State v. Chun, trial court judges and appellate courts have interpreted the law differently and have inexplicably ignored the precedent of our highest Court. However, one recent appeal, titled State v. Nucifora, was decided in Camden County back on December 30, 2008. This is an unpublished letter opinion which stands for the premise that the Alcotest operator must personally observe the accused for twenty minutes before administering the test.

N.J.S.A. 39:4-50-What Constitutes Under the Influence For A DWI?

Tom Martin — Tue, 03 Feb 2009 14:41:26 -0500

In order to be found guilty of a DWI, codified as N.J.S.A. 39:4-50(a), the Prosecutor has to establish certain proofs. The language of the DWI statute has been defined as "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic hallucinogenic or habit-producing drugs." State v Tamburro, 68 N.J. 414, 420-421 (1975). The test for determining being under the influence of alcohol is not fitness or unfitness to drive a car, but rather whether the accused has drank alcohol or ingested drugs to the extent that his or her physical coordination or mental faculties are deleteriously defected. State v. Miller, 64 N.J. Super. 262 (App Div. 1960).

Having defended hundreds of DWI's, the signs that police usually reference to support a conviction for DWI based upon the officer's physical observations are: (1) the smell of alcohol on a person's breath; (2) blood-shot eyes; (3) slurred speech; (4) fumbling for documents; (5) staggering or stumbling; (6) poor driving; and (7) inability to perform field sobriety tests.

www.jerseycriminallawyer.com

Constructive Drug Possession Expert Testimony Leads To Supreme Court Reversal

Tom Martin — Sat, 31 Jan 2009 17:01:14 -0500

In the drug possession case of State v. Rahmann Reeds, one of the questions presented was whether expert testimony, presented by the prosecutor, regarding constructive possession of drugs located in a vehicle exceeded the scope of acceptable expert testimony in a drug
prosecution trial. The Supreme Court ruled that the defendant suffered undue prejudice from the expert testimony, wherein, the expert expressed that the defendant constructively possessed
the drugs discovered in the car he was driving. This ultimate-issue opinion by the expert usurped the jury's singular role in the determination of defendant's guilt and incurably tainted the remaining trial proofs, producing an unjust result in defendant's trial.

In this case, the Supreme Court opined correctly that the expert's opinion on the issue of constructive possession was nothing more than a legal conclusion which decided the ultimate issue for the jury.

By: Thomas H. Martin, Esq.