Recently, in the case of State v. Bernokeits, the Appellate Division held that police officers need only reasonable suspicion, and not probable cause, in order to perform standard, roadside field sobriety testing on a driver suspected of driving under the influence. This means that police officers have a much lower burden when asking drivers to perform standard field sobriety tests than what is usually required for arrests and searches. Reasonable suspicion is described as “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.”

In Bernokeits, the driver was pulled over for “equipment violations.” Upon talking to the driver, the police officer stated that he detected an odor of alcohol. The officer then asked the driver if he had been drinking, the driver admitted to having a beer at a local bar. The officer, who apparently had a super-human sense of smell, testified that the alcohol he smelled had an odor more like hard liquor than beer. He then asked the driver to exit the vehicle and perform field sobriety tests. After attempting the tests, the driver was arrested and charged with driving while intoxicated in violation of N.J.S. 39:4-50.

At trial, defendant moved to suppress the field sobriety tests arguing that the officer did not have probable cause to perform the tests. The municipal court judge stated that the circumstances constituted a reasonable and articulable suspicion of DUI, which justified the officer conducting a further investigation by asking the defendant to perform the field sobriety tests.

Law enforcement officers are permitted to stop a vehicle for any violation of the traffic laws. Once they stop the vehicle, asking the driver to step out of the vehicle while presenting his credentials has been described as “de minimis.” However, the additional intrusion of asking a driver to perform roadside sobriety tests is a “seizure,” and implicates the Fourth Amendment protection against unlawful searches and seizures. Under the “Terry doctrine,” first proclaimed by the United States Supreme Court in Terry v. Ohio, brief investigatory stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity.

According to the Appellate Division in this case, asking a driver to perform field sobriety tests is more akin to a brief investigatory stop (where only reasonable suspicion is required), than an arrest, for which probable cause is required. The Court acknowledged that there is no “bright line” test to determine when an investigative stop becomes an arrest, courts look at several factors, including the temporal duration of the stop, the degree of fear and humiliation that the police conduct engenders, whether the defendant was transported to another location, and whether the defendant was handcuffed. Since, according to the Court, field sobriety tests do not last very long, do not require transporting the person, do not require handcuffing the person, they are more akin to an investigatory stop than an arrest.

While the Court also noted that the “fear and humiliation’ from roadside sobriety tests is minimal when compared to the law enforcement interest in ensuring public safety, many of my clients would disagree. Anyone charged with a DWI or any other offense in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

The New Jersey State Assembly is considering a bill that would allow a person whose driver’s license has been suspended for certain motor vehicle violations to apply for a restricted use license.  The restricted use license would permit the driver to travel to and from work or school if the driver can prove that other transportation is not available, and it would be an extreme hardship on the driver and his dependents if his license is suspended.  In order to prove that no other transportation is available, the driver would have to prove that there is no means of public transportation to their work or school within one mile of his home.

As the bill is currently drafted, if a driver gets his license suspended for certain violations, he would automatically be ineligible for the restricted license.  These offenses include offenses that involved death or serious bodily injury, exceeding the speed limit by more than 15 miles per hour, reckless driving, driving without motor vehicle liability insurance, illegally passing a school bus, driving while suspended, and accumulating 12 or more motor vehicle points.  A driver would be able to get the restricted use license if their driver’s license is suspended for driving while intoxicated.  Suspended drivers with a restricted license would be able to apply for and obtain the special license, which would be a different color from a regular driver’s license.  The drivers would also be required to place a special placard in the rear view mirror of their vehicle.

Many other states, including New York and Pennsylvania, have some form of restricted driver’s license available to suspended drivers.  It is time for New Jersey to pass legislation so that a one-time mistake does not cause otherwise productive members of society to lose their livelihoods.  New Jersey’s DWI laws and other traffic laws that may result in suspended driver’s licenses are some of the most draconian in the country and it would be a net benefit to society to permit people to continue to be able to drive to work or school.  The bill is currently stalled in the State Assembly.

Last Saturday night, a wild police chase ended when the car that was being pursued went airborne and flew into a house in Elizabeth, New Jersey.  Police state that the chase started around 10 p.m. in Linden, New Jersey when officers attempted to pull over the suspect vehicle driven by Anibal Camacho of Elizabeth. The driver purportedly refused to stop and took officers on a chase through Linden, into Roselle and finally ending in Elizabeth.  As a result of the incident, Camacho has been charged with eluding, aggravated assault on a police officer, and driving while intoxicated.  If convicted, Camacho faces up to twenty years in prison.

Linden Police officers observed the 1999 Honda driven by the accused with a loud muffler traveling on East St. Georges Avenue in Linden.  Police purportedly ran a license plate check and determined that the vehicle’s registration had expired. Police state that they then attempted to pull it over, but the vehicle allegedly sped away.  At one point, the driver purportedly drove onto a sidewalk and struck a police officer who approached the car.  Linden police chased the car into Roselle, where police state the vehicle struck a Roselle patrol car.  The chase then allegedly continued back through Linden and into Elizabeth.  In Elizabeth, the vehicle allegedly struck a parked car, flew into the air, and crashed into a house.  The driver purportedly attempted to flee on foot, but was arrested shortly thereafter by police officers.

Under N.J.S. 2C:29-2(b), “Any person, while operating a motor vehicle on any street or highway in this State or any vessel…on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.”  There is a presumption that the person created a risk of death or injury if the person is operating the motor vehicle while intoxicated.  Second degree crimes carry a potential prison sentence between 5 and 10 years.

Under N.J.S. 2C:12-1, even a simple assault is elevated to an aggravated assault if the person commits the assault upon “any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer.”  Generally, an aggravated assault is a third-degree crime that carries a prison sentence of three to five years; however, an aggravated assault can be elevated to a second degree crime if it results in serious bodily injury, if the person attempts to cause seriously bodily injury and manifests an extreme indifference to the value of human life, or causes bodily injury to another while eluding police.  Given that the defendant in this case allegedly struck a police officer, he is likely charged with second degree aggravated assault even if the purported injury to the officer was minor.

As this case illustrates, running from police officers can result in charges that are much more severe than the charges for which the officers initially intended to stop the person.  For example, in this case, the suspect would likely have only faced a suspended driver’s license if he pulled over when initially signaled by police.  However, now that he is charged with eluding, he faces mandatory prison time.  Anyone charged with eluding, aggravated assault on a police officer, driving while intoxicated, or any other crime in New Jersey should contact New Jersey criminal defense lawyer Nace Naumoski for representation.

Middlesex County Superior Court Judge Michael Toto sentenced Kimberly Green of Somerset yesterday to a state prison term of 8 years  for vehicular homicide and a consecutive term of 4 years for assault by auto yesterday for an incident that occurred in December 2007.  Green was convicted of vehicular homicide and two counts of assault by auto last month by a Middlesex county jury last month for an incident that occurred in December 2007.   The jury found that Green was operating motor vehicle while under the influence of alcohol when she drove through a red light and struck a car, killing the driver and injuring two passengers.

Under N.J.S. 2C:11-2, “A person is guilty of criminal homicide if he purposely, knowingly, recklessly or, under the circumstances set forth in section 2C:11-5, causes the death of another human being.”   N.J.S. 2C:11-5 provides that “criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.”  “Proof that the defendant was driving while intoxicated…or was operating a vessel under the influence of alcohol or drugs…shall give rise to an inference that the defendant was driving recklessly.”  Furthermore, “if the defendant was operating the auto or vessel while under the influence of any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or with a blood alcohol concentration at or above the prohibited level…the defendant shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, during which the defendant shall be ineligible for parole.”

Unless it occurs in a school zone, vehicular homicide is a second degree crime.  Second degree crimes carry a prison term of between 5 and 10 years.  Moreover, under New Jersey’s No Early Release Act, N.J.S. 2C:43-7.2, anyone convicted of vehicular homicide must serve 85% of the prison sentence imposed before they become eligible for parole.  In the Green case, the defendant was sentenced to 8 years on the vehicular homicide charge, and therefore must serve slightly less than 7 years before she begins to serve the consecutive sentence for the assault by auto convictions.

Under N.J.S. 2C:12-1(c), (1) “a person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another.”  “Assault by auto or vessel is a crime of the third degree if the person drives the vehicle while in violation of [the drunk driving laws] and serious bodily injury results.”  Third degree crimes carry a prison term between 3 and 5 years.  Green was sentenced to two concurrent 4 year terms on the two counts of assault by auto for the injuries she caused to the two passengers of the car she struck, and will serve approximately 16 months on these terms after she has completed the prison term on the vehicular homicide charge before she becomes eligible for parole.

At trial, Green was acquitted of aggravated manslaughter.  Under N.J.S. 2C:11-4, criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.  As this case illustrates, vehicular homicide is one of the most serious crimes in the New Jersey criminal code, especially when it results from a defendant operating a motor vehicle under the influence of alcohol or drugs.  Therefore, anyone charged with vehicular homicide, aggravated manslaughter, and the related crimes of assault by auto and driving while intoxicated, should contact a New Jersey criminal defense lawyer for representation.

By: Nace Naumoski

On May 18, 2010, Patricia Blakely, a middle school teacher in Randolph, New Jersey, was pulled over on Route 10 west by Roxbury police.  The officer that pulled Blakely over suspected that she might be operating the vehicle while under the influence of alcohol in violation of N.J.S. 39:4-50 because the teacher appeared confused and was slurring her speech.  While police officers were questioning Blakely, who was in her vehicle, she put the vehicle in drive and took off from the scene.  In the process, she nearly ran over the officer’s foot.  Officers were able to stop Blakely again further down the highway.

As a result of this incident, Blakely now faces several charges, including driving while intoxicated, having an open alcoholic beverage in a motor vehicle, reckless driving, and eluding.  The eluding charge, which is the most serious charge she faces, is an indictable offense in New Jersey, and accordingly the matter has been referred to the Morris County Prosecutor’s Office.

Under N.J.S. 2C:29-2(a), a person can be charged with fourth-degree eluding if she, by flight, purposely prevents or attempts to prevent a law enforcement officer from affecting an arrest.  A fourth-degree crime carries a prison sentence of up to 18 months.  Eluding is elevated to a third-degree crime if the person uses or threatens to use physical force or violence against a law enforcement officer or uses any other means to create a substantial risk of causing physical injury to a public servant or any other person.

Eluding is also a third degree crime under N.J.S. 2C:29-2(b) if the person flees from police while operating a motor vehicle after police have given her a signal to stop.  A third-degree crime carries a prison sentence of three to five years.  Also under N.J.S. 2C:29-2(b) a person can be charged with second-degree eluding if she attempts to flee from police while operating a motor vehicle and in so doing creates a risk of death or injury and the person violates certain motor vehicle laws, including operating a motor vehicle while intoxicaed.  A second degree charge carries a prison sentence between five and ten years and also carries a presumption of imprisonment.

In Ms. Blakely’s case, she has recently applied for pre-trial intervention under N.J.S. 2C:43-12.  Pre-trial intervention is a diversionary program for first-time, non-violent offenders.  The goal of the program is to provide applicants with an opportunity to avoid ordinary prosecution by receiving early supervision or rehabilitative services; to provide an alternative to prosecution in order to avoid the harm caused by a criminal record where that would be a sufficient deterrent of future criminal conduct; to provide a mechanism for permitting the least burdensome form of prosecution for defendants charged with victimless crimes; to conserve judicial resources and allow for more efficient handling of court calendars; and to deter future criminal conduct.

When determining whether to permit an applicant into a pre-trial intervention program, prosecutors and PTI program directors can consider several factors, including: the nature of the offense; the facts of the case; the motivation and age of the defendant; the desire of any complainant or victim to forego prosecution; the existence of personal problems or character traits of the defendant which are related to the crime committed for which services can more effectively be provided through supervisory treatment; the likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through participation in supervisory treatment; the interests of society; the extent to which the defendant’s crime constitutes a part of a continuing pattern of anti-social behavior; the defendant’s record of criminal or penal violations; the assaultive nature of the crime charged; whether prosecution would exacerbate the social problem that led to the applicant’s criminal act; any history of physical violence towards others; involvement with organized crime; whether the crime is of such a nature that the value of supervisory treatment is outweighed by the public need for prosecution; the status of cases pending against co-defendants; and whether the harm done to society by abandoning traditional prosecution outweighs the benefit to society of providing supervisory treatment.

Generally, when a person is admitted to PTI, he is given a period of supervision between one and three years.  The type of supervision is similar to ordinary probation.  If the applicant is able to complete all of the terms of probation and is not charged with any new offenses during the the PTI period, all charges are dismissed and the applicant’s criminal record remains clean.

In Ms. Blakely’s case, she may be a candidate for PTI if she is a first-time offender.  Since she is a public employee, if it is determined that the crime she is alleged to have committed somehow touches on her employment as a teacher, she may be denied admission into the PTI program as there is a presumption against admission into PTI for such defendants.  Also, if she is charged with second-degree eluding, it may be more difficult for her to be admitted into PTI as a second-degree charge requires a joint application into the PTI program by the defendant and the prosecutor.  Moreover, in cases that involve a breach of the public trust, an applicant should be rejected from enrollment into PTI if enrollment would diminish the seriousness of the crime.

In addition, while PTI may provide a diversion for any crimes she is charged with, generally the DUI case and other traffic violations will still be referred to the municipal court for prosecution.  If they are not referred to the municipal court for prosecution, the postponement of prosecution provided by the PTI program may raise speedy-trial issues one the municipal court charges.

PTI is an excellent way for non-violent first-time offenders to avoid a criminal record.  In many cases, enrollment into the PTI program is one of the best results that a criminal defendant can obtain short of a full acquittal.  Therefore, anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer in order to discuss the various options available for avoiding prosecution, such as PTI, in addition to other available defenses and strategies.

In State v. Kim, the defendant’s conviction for refusal to submit breath samples following his arrest for driving while intoxicated was affirmed by the Appellate Division, in spite of the fact that the defendant may not have understood the standard statement read to suspects charged with driving while intoxicated.  This Appellate Division case comes just after the New Jersey Supreme Court granted certification in the matter of State v. Marquez, which means that the Supreme Court is going to be conclusively deciding this very same issue.

In this case, the defendant was charged with refusing to submit breath samples after being arrested for driving while intoxicated under N.J.S. 39:4-50.2 and N.J.S. 39:4-50.4a.   The defendant in this case was observed by a police officer urinating on a tree while his car was parked in a parking lot, with the engine running and the driver’s side door open.  The officer smelled alcohol on the defendant and asked him to run through a variety of field sobriety tests.

At the police station, the defendant was read his Miranda rights and the standard statement regarding refusal as required by N.J.S. 39:4-50.2e.  In his letter of appearance, defense counsel represented that defendant would move to suppress evidence that was seized unlawfully, without a warrant.  During an evidentiary hearing on whether the arresting officer had probable cause for the arrest, defense counsel raised the issue that defendant did not speak English and therefore did not understand the refusal warning.  Defense counsel did not make a formal motion to address the issue.  At trial, the refusal to submit to a breath test was found to have been knowing, and defendant was convicted of that charge.

The Appellate Division held that proof beyond a reasonable doubt that a suspect arrested for DWI understands the standard refusal statement is not required for a refusal conviction.  According to the Appellate Division, it would be an undue burden on the State to require the State to read the standard refusal statement in every language that a potential DWI suspect might speak.

The Appellate Division also held that there was a procedural bar to the defendant’s argument.  According to the Appellate Division, defendants who seek to exclude evidence on constitutional grounds are required to file a formal motion to suppress the evidence in accordance with Rule 7:5-2.  Further, the defendant must show that there are material facts in dispute in order to be entitled to an evidentiary hearing.

This decision is important because the Appellate Division seems to be indicating that defendants must now file a formal motion whenever they want to move to exclude evidence at trial on constitutional grounds.  This has not been the practice in municipal court, and formal motions to suppress have been reserved for cases involving search and seizure issues.  Based on this decision, a New Jersey DWI lawyer should file a formal motion, on notice to the county prosecutor as required by Rule 7:5-2, in every case where he seeks to exclude evidence on constitutional grounds.

In State v. Tsetsekas, decided on December 14, 2009, the Appellate Division gave some teeth to the constitutional speedy trial requirement in DWI prosecutions.  Generally, motions to dismiss a case in Municipal Court for failure to provide the defendant with a speedy trial are looked at by municipal court judges with skepticism and are rarely granted.  However, in this case, the Appellate Division held that a delay of nearly one year occasioned by the prosecutor not being prepared to proceed to trial while the defendant appeared on multiple occasions and was prepared for trial warranted a dismissal on speedy trial grounds.

The Appellate Division first noted that the right to a speedy trial is guaranteed by the Sixth Amendment of the United States constitution.  The United States Supreme Court has announced a four-part test to determine when a delay in bringing a matter to trial infringes upon a defendant’s right to a speedy trial.  The four factors for courts to consider are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant.   None of these factors weighs any heavier than the other factors, but rather, the factors are examined and balanced as a whole.

With respect to the first factor, the Appellate Division noted that the delay of almost one year in this case was five months longer than the 60-day period in which DWI prosecutions are supposed to be disposed.  The Appellate Division also noted that the delays in this case were numerous, mostly avoidable, and largely unexplained.   With respect to the second factor, the Court noted that the delays were not intended to hamper the defense; however, all of the delays were caused by the State’s inability to proceed and failure to secure its own witnesses.  With respect to the third prong, counsel for defendant timely asserted his client’s right to a speedy trial by writing to the court to complain directly about the State’s repeated adjournment requests.  With respect to the final factor, the court held that while the delay did not prejudice the defendant’s ability to defend on the merits; however, it did cause the defendant a significant drain in finances by incurring unnecessary counsel and expert fees, and also caused the defendant significant anxiety for an extended period of time.  Accordingly, the Appellate Division held that all four factors warranted a reversal in defendant’s conviction for DWI.

In any DWI case, it is important for a New Jersey DWI lawyer to diligently pursue discovery on behalf of his client and to assert his client’s rights when appropriate.  Counsel’s diligence often opens up opportunities for a favorable result for a client charged with DWI or any other municipal or criminal offense in New Jersey.  Therefore, anyone charged with DWI in New Jersey should contact a New Jersey DWI lawyer for assistance.

On December 2, 2009, the Appellate Division held in the case of State v. Ugrovics, that in a DWI prosecution, the State is only required to establish that a DUI suspect did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the Alcotest results for a period of at least twenty minutes prior to the administration of the Alcotest, and that the identity of the observer is not germane to this point.  Previously, some courts had held that it was required that the officer observing the defendant for the twenty minute period was the same officer who administered the Alcotest; however, this case clarified that any competent person may observe the defendant for the twenty minute period.  A conviction of DWI in New Jersey carries serious consequences, including loss of license, heavy fines, and possibly jail time; therefore, anyone charged with driving while intoxicated in New Jersey should contact a New Jersey DWI lawyer for assistance.

In the seminal case of State v. Chun, the Supreme Court held that any DWI suspect who was being administered an Alcotest to determine his level of intoxication had to be observed for twenty minutes prior to the test to insure that he did not ingest or regurgitate anything.  The reason for this is because alcohol present in the mouth either by the suspect ingesting or regurgitating something could skew the results of the Alcotest and render them unreliable.  Many Municipal courts had determined that the officer that administers the Alcotest to the suspect must be the same officer that observes the defendant.  Several Superior Courts had upheld this view.  The logic behind this view is that only an officer that is trained in administering the Alcotest would know what to look for during the observation period that might render the results of the test unreliable.

In the present case, defendant was pulled over on the Hamburg Turnpike in Riverdale, New Jersey for speeding.  The officer smelled alcohol and defendant admitted that he had consumed alcohol that night.  When defendant was brought to the police station, the arresting officer observed him for twenty minutes, and then another officer administered the Alcotest.  During trial, the State stipulated that it would have only called the arresting officer to testify that defendant had been observed for twenty minutes.   The arresting officer was not trained to administer the Alcotest.  The defendant entered a conditional plea of guilty reserving the right to challenge whether the twenty minute observation period has to be performed by the officer administering the Alcotest, or could be performed by any officer. 

The Appellate Division first recognized that the defendant’s position that only the operator can observe the test subject for the twenty minute period is supported by the language of the Court’s opinion in State v. Chun.  However, the Appellate Division held that a literal application of the language used in Chun would create an unduly and unintended restriction on the State’s ability to prosecute DWI cases based on the results of an Alcotest.  According to the Appellate Division, construing the twenty-minute requirement as bestowing upon the operator of the Alcotest the sole responsibility of monitoring the test subject would elevate form over substance.  Accordingly, the Appellate Division panel decided to ignore the plain words used by the Supreme Court in the Chun opinion, and to substitute its own judgment in holding that it is permissible for any witness to observe the test subject, not just the Alcotest operator.

As this case makes clear, contentious legal issues often arise in the context of prosecutions for DWI in New Jersey.  Therefore, anyone charged with drunk driving in New Jersey should contact a New Jersey DWI lawyer for an analysis of the factual and legal issues that may be raised in the case.  DWI charges carry serious consequences, and defendants charged with DWI should take advantage of the assistance that a New Jersey DWI lawyer may be able to provide.