New Jersey Criminal Defense Blog

“You have the right to remain silent. Anything you say can and will be used against you.” These words are now so familiar to almost everyone who has watched any crime movie or television show, but what happens when someone is questioned by the police? The answer is that they very frequently end up giving a statement!!

In my nearly fifteen years of practicing criminal law in New Jersey, by far my most frequent and best advice given to those who are questioned by the police is “do not speak to the police unless you have an attorney present.” In Miranda v. Arizona the U.S. Supreme Court ruled that the Fifth Amendment right against self-incrimination is not limited to in-court testimony, but also applies whenever a person is taken into police custody for questioning. The Court further ruled that before such questioning can begin, police must explain to the person that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of any attorney, either retained or appointed.”

The police will use all kinds of efforts to evoke a statement from you. They will tell you that a statement will help you, they will tell you to “be a man and tell the truth”, they will tell you that the co-defendant already told them what happened, etc. Remember, giving a statement, with very few exceptions, DOES NOT HELP YOU and in most circumstances, WILL HURT YOU.

If you have been arrested and have already given a statement, an experienced criminal defense attorney can review the facts and circumstances of the statement and if the police did something wrong, a motion to suppress can be filed in an attempt to have the statement disallowed as evidence.

When questioned by the police, never be rude or disrespectful, but be firm in your request to have an attorney present before any statements are made. Call an experienced criminal defense attorney at Lependorf & Silverstein.

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Posted In: Criminal Defense

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Individuals who are charged with a third time DWI violation in the State of New Jersey face severe penalties if convicted. Most problematic is a mandatory term of imprisonment of not less than 180 days in a county jail or workhouse, and a required forfeiture of the right to operate a motor vehicle in the state for ten years. Other mandatory fines and penalties also apply.

On February 23, 2007 the New Jersey Appellate Division ruled in State v. Hammell, that third-time DWI offenders who are subject to the mandatory 180 days in jail can not choose to serve that time in the non-custodial Sheriff’s Labor Assistance Program (“SLAP”) in lieu of their jail time. SLAP was first introduced in the State of New Jersey in Morris County in 1986. It is an alternative to prison. It permits individuals sentenced to jail to serve their time on weekends through sheriff-supervised community service. SLAP eligible individuals spend their weekends at sites all over the state performing supervised tasks such as painting buildings, picking up trash, and cleaning up parks. Importantly, the program allows defendants to keep their Monday through Friday jobs and to continue to live with their families. It is much less disruptive to one’s life than having to spend 180 consecutive days in prison.

Unfortunately, State Courts are so focused on curbing drunk driving in the state, that work release as an alternative sentence for third time DWI offenders is not permitted. This makes it very important for individuals who are unfortunate enough to be charged with a third DWI to retain an attorney who can fight the charge vigorously. The penalties are too stiff if convicted. Please contact the drunk driving defense lawyers at Lependorf & Silverstein, P.C. if you have been charged with a DWI in the State of New Jersey. The DWI defense lawyers at Lependorf & Silverstein, P.C. will fight on your behalf to keep you home with your family. Please call Lependorf & Silverstein, P.C. for a free case evaluation today.

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Posted In: DUI DWI Drunk Driving

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A New Jersey Appellate Division Court has recently ruled, in the case of State v. Renshaw, A-0712-05T1, that the right of confrontation, protected by the Sixth Amendment to the U.S. Constitution, is applicable to DWI cases where a prosecutor seeks to offer evidence of an elevated blood alcohol content level through the use of a Uniform Certification. Following the DWI arrest, the defendant was taken to a nearby hospital where a registered nurse drew blood from the defendant and submitted the sample to the State Police laboratory for testing. The test result showed a BAC level of .14 in both vials of blood. Defendant Renshaw was found guilty of DWI at the Municipal Court level largely because the Judge allowed the prosecution to offer evidence of an elevated blood alcohol content level through the use of a Uniform Certification. The defendant’s attorney was not permitted to cross examine the nurse who drew the blood. Rather, the attorney was forced to allow the laboratory test result into evidence.

On appeal, the defendant argued that an opportunity to cross examine the nurse who draws blood in these types of cases could show blood samples to be contaminated or improperly drawn. For instance, the wrong type of swab could be used prior to drawing the blood, thereby contaminating the sample. The higher Court agreed with the defense attorney and overthrew the conviction. Importantly, the higher Court ruled that the right to cross examine nurses who draw blood does not exist when “a defendant consents to the admission of the certificate and agrees to waive the opportunity for cross-examination.” If you have been charged with a DWI in the state of New Jersey, it is important to consult an attorney to review every detail of your case. The evidence against you is subject to many constitutional protections that can be used to help fight the DWI summons. Contact the firm of Lependorf & Silverstein, P.C. for a comprehensive review of your case. The penalties associated with a DWI ticket in New Jersey are too severe not to speak with a Lependorf & Silverstein, P.C. attorney, experienced in DWI matters.

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Posted In: DUI DWI Drunk Driving

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On February 2, 2007 the Appellate Division of the Superior Court of New Jersey reversed a lower court’s conviction for the disorderly persons offense of shoplifting in violation of New Jersey’s Code of Criminal Justice. A New Jersey man had returned to a drug store to pick up film that he had dropped off to be developed. He was dissatisfied with the initial development of the film because the date did not appear on the film as he had requested. Upon returning to the store to retrieve the developed film he was still dissatisfied because he had requested double prints, and the store had only produced a single set of prints. The man took the single set of photographs from the store without paying for them. He left his name and address on a piece of paper with the store attendant and walked out of the store.

The store’s manager called the local police and the man was charged with shoplifting. During the trial, the defendant testified that he intended to pay for the prints, but that the store had tried to charge him for double prints when they had only provided him with single prints. He testified that he had every intention of paying for the prints if the store would have provided him with double prints. The defendant went on to argue during the trial that he was not shoplifting because he had every intention of paying for the prints at a later date which is why he left his contact information with a store employee before he left the store. The defendant claimed that there was merely a “billing dispute.” The defendant also argued that the prints were not “merchandise,” because they were of no value to anyone other than himself.

On appeal, the Appellate Court reversed the lower court’s conviction and concluded that the shoplifting statute was inapplicable to this case. The higher court agreed with the defendant that the prints are not “merchandise,” and that prints “have no market value, but merely their value to the photographer.” The higher court also ruled that the state did not prove beyond a reasonable doubt that the defendant did not intend to pay for the prints he removed from the store. By leaving his contact information before exiting the store, the defendant indicated that he intended to resolve the billing dispute at a later time. He did not leave the store with “the intention of converting the same to his own use without ‘paying the merchant the full retail value thereof.’”

If you have been charged with shoplifting or a similar offense, please contact an attorney at the firm of Lependorf & Silverstein, P.C. for a free case evaluation. As this article demonstrates, it is often difficult for the state to prove its case against defendants whom they have charged. There are many defenses that can be raised. Please call today for a case evaluation with an experienced New Jersey criminal defense attorney.

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Posted In: Theft/Shoplifting

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On February 13, 2007 a special master who had been appointed by the New Jersey Supreme Court ruled that the Draeger Alcotest 7110 machine that is used in most municipalities in the state of New Jersey is scientifically reliable. The ruling ended much speculation about how state Municipal Courts would handle DWI cases that rely on the Alcotest’s measurement of blood-alcohol levels in individuals arrested and charged with driving while intoxicated. Special master Michael Patrick King ruled, in State v. Chun, “This court finds that the Alcotest 7110, NJ 3.11 version is and has been scientifically reliable, under the clear and convincing evidence standard when the test protocol is carefully followed by the operator and the instrument is functioning properly.”

Special Master King did, however, rule that the test operator must be properly certified to use the machine, and that very specific procedures must be followed in operating the machine. Other changes were also recommended with respect to the specific type of documents that municipal prosecutors must provide during discovery. In addition, the ruling, if adopted by the State Supreme Court, provides defense lawyers with strong arguments in cases where the blood-alcohol reading is right on the cusp of the legal limit. In other words, in cases that have been stayed pending the special master’s decision, where defendants blood-alcohol readings are .10 or .08, a strong legal argument can be made to prosecutors that those readings are not scientifically reliable under this ruling and that the levels in these cases should be reduced to .09 and .07 respectively.

Importantly, there are still a multitude of issues that arise in DWI cases by which defense attorneys can challenge a DWI summons. An elevated blood-alcohol level reading does not necessarily doom a DWI defense. There are still many other elements to be proven by the state in a DWI case. The state’s burden of proof remains “beyond a reasonable doubt” and there are many constitutional defenses that can be asserted in a DWI case. Every case is different, and every case is very fact specific. If you have been charged with a DWI summons, please contact the firm of Lependorf & Silverstein, P.C. for a free case evaluation. Our aggressive attorneys will fight for you and pursue every avenue available to us to defend you in court.

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Posted In: DUI DWI Drunk Driving

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