New Jersey Criminal Lawyer Blog

This blog is to publicize a relatively recent change in New Jersey motor vehicle law that affects us all. This statute is referred to as the "New Jersey Move Over Law" (N.J.S.A. 39:4-92.2). The law reads that the operator of a vehicle approaching a stationary emergency vehicle, e.g., police car, ambulance, etc., that is displaying flashing emergency lights shall approach the emergency vehicle with due caution and shall either (1) make a lane change into a lane not adjacent to the emergency vehicle if possible in the existing safety and traffic conditions; or (2) If a lane change would be impossible, then reduce the speed of the vehicle to a reasonable and proper speed for the existing roadway and traffic conditions, which shall be less than the posted speed limit.
What does that mean in practical terms? If you're driving along the road and you see something like a police car with its lights on at the shoulder of the road, you should move over a lane if you can. If changing lanes is impossible, then you should slow down considerably and pass the police car with extreme caution. The penalty for this ticket is a fine between $100 and $500 and two motor vehicle points. With this degree of potential expense and long term inconvenience of points on your license, you should contact an attorney immediately in order to defend against and potentially lessen these charges or challenge their validity.

A car is parked on the side of a highway with the internal light on and its occupants in a heated discussion of some sort. A police officer appears at the driver's side to check on the situation and make sure they do not need help. After being assured by both driver and passenger that they are fine and in no need of help, the officer smells what he believes to be alcohol on the driver's breath, and requests that he exit the vehicle for the purposes of a field sobriety test. Is this test respectful of the driver's constitutional rights? Is this test a warranted attempt to protect all the other vehicles on the road?

An experienced lawyer would tell you that according to the New Jersey courts, the oral aroma or odor of alcohol alone is not sufficient to sustain the probable cause necessary for questioning and sobriety testing. The New Jersey Appellate Division, in State v. Hawkins, A-7400-97T5F (1999), held that the smell of alcohol on an individual's breath is insufficient to provide probable cause for the officer's belief that the driver was operating his vehicle under the influence of alcohol in the absence of any untoward driving or other indication of insobriety. In the Hawkins case, the defendant was stopped for a community caretaking reason when the officer heard a scream emit from the vehicle. There was no evidence of unsafe or illegal operation of the car. The only indication to the officer that the defendant had consumed alcohol that evening was the odor on his breath.

The New Jersey Appellate Division again addressed this issue in State v. Jones, 326 N.J.Super. 234, 245-6 (App.Div. 1999), stating that, "The nervousness of the driver, considering the fact of the stop itself, along with his consumption of alcohol, is expected. The mere smell of alcohol and admission of consumption may not, by itself, warrant a sobriety test...However, justification of the search under these facts would have the effect of permitting a search...of every motor vehicle which is stopped for a minor motor vehicle violation, where the driver admits to having consumed one bottle of beer. Such a search goes beyond the bounds permitted and does not pass constitutional muster." In the Jones case, the driver was stopped by the police officer for failing to use a traffic signal when changing lanes on the New Jersey Turnpike. After the vehicle was stopped and the officer was speaking to the driver, the officer noticed an odor of alcohol on the driver's breath.

So not only must the police officer witness actual operation of a vehicle, he must witness a more than minor moving violation just prior to pulling you over, in order to be paired with detection of alcoholic breathe to create sufficient probable cause for a field sobriety test. Failing to signal before a lane change is too minor. What exactly constitutes a sufficiently serious moving violation for a police officer to legally request to administer a field sobriety test to a driver? Must it be obviously erratic and unsafe driving? What is clear is that alcohol on your breath is not enough. And that passes the sniff test. Reasonably, three sips of a beer could make your breath smell like alcohol, and simultaneously, you might have 6 beers in an hour, chew a couple of Altoids and not emit any oral alcoholic odor. What constitutes a serious enough moving traffic violation to make coincidental alcoholic breath sufficient probable cause to request a field sobriety test is a different legal question for a different post. Either question should be considered by a skilled attorney when defending any DUI/DWI charges, and should be contacted as soon as possible following such an incident.

Another sparkling product of the NFL has appeared on the crime blotter. Corey Dillon, retired running back for the New England Patriots, was reportedly charged with DUI, driving under the influence, or DWI, driving while intoxicated.

Sherriff's deputies have stated that officers spotted a man in a red Chevy Camaro driving very slowly behind them in the pre-dawn hours of the morning. The Super Bowl veteran was pulled over and questioned, and allegedly admitted to drinking earlier the prior evening. Bail for the 35 year-old father of three was set at $5,000.00, he was then released after posting, and he is expected to return to Court in June.

Operating a vehicle while under the influence of drugs or alcohol, or DWI, in California is a criminal offense, which is why the $5000.00 bail was set. In New Jersey, DWI is technically a motor vehicle offense but it has with quasi-criminal penalties, including jail fines more than $750.00, license suspension and a record that can negatively impact many other parts of your life.

The recently unlucky football star has been brought to Court for other reasons as well. His wife, Desiree, has reportedly filed for divorce after 10 years of marriage, claiming irreconcilable differences. She has asked for full legal and physical custody of their children, spousal support and legal fees. While she has offered to agree to visitation for Dillon, his pending DWI charge will no doubt have an effect on how liberal that visitation will be, and whether or not the Court will require that he see his children while under supervision. His recent conduct was enough to bring criminal charges of DWI, even if they are not ultimately proven, at the very least give the appearance of questionable behavior, and arguably poor judgment. A judge may not want him driving with his children, for example, until the case is settled.

Given the complexity of the potential consequences of a DUI in New Jersey, it is crucial to have an experienced attorney represent your rights as soon as possible.

Interestingly, Corey Dillon was pulled over for driving unusually slowly. Though most thinkg of erratic driving as speeding or weaving, driving unusually slowly is another form of erratic driving. Driving extremely slowly is usually charged with careless driving, NJSA 39:4-97, which carries a penalty of 2 points as well as a fine, and is certainly a legitimate reason to stop a vehicle in NJ. So do not think you are in the clear if you "take it nice and slow" on your way home from a night out. Or if you do, have your attorney on speed dial.

A defendant who pleaded guilty to assault, and charged with drunken driving, drug possession among other things, fled his home state recently. But according to a report, he virtually turned himself in using Facebook. He was living in a nearby state since the fall, and has been wanted by police for failure to appear at his sentencing. Perhaps he didn't realize that police use the Internet too. The tech-savvy police posted a thank-you note too, for the defendant's diligent status posts, which led them to his whereabouts.

A 17 year-old girl pleaded guilty to misdemeanor driving while intoxicated and criminally negligent homicide connected to a car crash that killed her boyfriend. She was driving drunk in the middle of the night, and crashed her car into a brick pole. She had a blood alcohol level of .13 % and was driving 56 m.p.h. in a 30 m.p.h. zone. Basically, she got behind the wheel of a car while drunk, and should have known that doing so could easily kill someone. Every state, including New Jersey, has its own requirements, definitions and terms for driving while under the influence of drugs or alcohol and the crimes that stem from that action. As always, it is crucial to consult an attorney well versed in those laws.

The Judge denied her youthful offender status and imposed a 6-month jail sentence reportedly because he had seen a picture she posted of herself on Facebook. The photograph was taken of her one month after the crash, and she posted it captioned "drunk in Florida." She could have gotten as much as 4 years in state prison, but the Judge reportedly felt forced to consider her young age and clear history.

Her drivers license is revoked, and following her jail sentence, she will be under electronic home monitoring for one year and on probation for five, during which she is not allowed to drink under its terms.

A judge wants to see a remorseful defendant regardless of the crimes he or she has been charged with or found guilty of, and evidence to the contrary is extremely damaging. The Judge is free to consider all factors that have any arguable relevance. Every defendant should keep in mind that the Judge wants to see that his or her encounter with the criminal justice system has taught a lesson and changed his or her behavior for the better. The Internet has created a new environment in which to evaluate a defendant's behavior, and it is completely public. There is a new way we are all being held accountable for our behavior, and the legal profession is aware, that is nothing new. The consequences can clearly be harsh, and it is yet another lesson young adults have to learn.

Arrested on drunken and careless driving charges, NFL linebacker Rey Maualuga reportedly hit a parking meter and two cars after a traffic accident was called in to local police. Apparently, after police were notified of the incident, the officers were able to conclude that Maualuga was driving the Pontiac that had hit the parked cars and meter. There were two female passengers with him who were released and not charged.

According to reports, he had a blood alcohol content of .157, admitted to having six drinks, and failed field sobriety tests. He had bloodshot eyes, slurred speech and was visibly unsteady. His first arrest was in 2005 on charges of misdemeanor battery, after he got in a fight at a party as a college freshman. Upon agreeing to community service, counseling and attending Alcoholics Anonymous meetings, the charges were dismissed.

It is unclear how police connected the football player to the car after the fact. This continues a trend of Cincinnati Bengals players that have been arrested in past years. Under New Jersey law, even if the police do not see the accident in progress, police can arrest someone after the fact if the officer can trace the car to the driver, and the driver is intoxicated. In this case it appears that happened and Maualuga was visibly intoxicated so he was charged. An experienced, skilled attorney can analyze the circumstances of a case like this to determine how to best defend against these types of subsequent charges.

Chris Terry was charged with a DUI, a class A felony dealing cocaine, a class C felony drug possession, resisting arrest, possession of a handgun without a permit and driving with a suspended license, in Clarksville, Indiana. Another man and woman were also in the car, in the man's pocket was $1,200.00 and near him was a large amount of cocaine. They were arrested for similar charges, including public intoxication. The arrest was made at a traffic stop early Wednesday morning when a police officer witnessed him driving erratically. Under Terry's his seat was a loaded handgun and in the cup holder next to him was some cocaine. Add to these elements that Terry is 6'5" and 295 pounds and that he allegedly refused to follow police instruction, this could certainly present a very dangerous set of circumstances. Terry is currently being held without bond.

Charges of DUI, drug possession, dealing, possession of a loaded weapon without a permit, resisting arrest and public intoxication carry serious penalties in every state, including New Jersey. This is quite a fall from Terry's football days. He attended the University of Georgia, and played for the Carolina Panthers, the Seattle Seahawks, and most recently, the Kansas City Chiefs in 2006 and 2007. It was reported that the Chiefs cut him for being absent from team meetings in 2007. The NFL suspended him from the 2008 season for substance abuse, after already having been suspended in 2003 drugs and a domestic dispute. Domestic violence and drugs are a common pair, and they should be taken very seriously.

In New Jersey, cocaine is considered a "Controlled Dangerous Substance," or CDS. As one example, this felony possession charge could lead to up to 5 years in jail and remain on your record permanently. If it is your first offense, you could be eligible for the Pretrial Intervention program, which can lead to a dismissal of charges after 1 year. One way to defend against charges of this nature is to question the method of the police search and seizure, or how the cocaine was discovered. The specific facts of the arrest are crucial in determining the best legal course of action.

If you have been involved in domestic violence, or charged with DUI, drug possession charges, weapons charges, or any of these crimes, it is crucial that you call an attorney immediately. Experienced attorneys can be reached at Chamlin, Rosen, Uliano and Witherington.

Leandra's Law, or the Child Passenger Protection Act, has helped New York make a political statement publicizing the terrible toll paid when drunk drivers have children in the car. Leandra Rosado was killed in October when Carmen Huertas was drunk driving young girls to a slumber party and the car flipped and Leandra was thrown from the vehicle. The law makes a first offense drunk driving with minors under age 16 a felony, with penalties of up to four years in prison and fines up to $5,000.00. A driver convicted under Leandra's Law is reported to the Statewide Central Registry of Child Abuse and Maltreatment and is required to use the mandatory ignition interlock system as well.

While New Jersey does not have a Leandra's Law, a driver who is drunk or under the influence of any drug that can alter one's ability to operate a vehicle and has minor passengers can be charged with additional crimes, including endangering the welfare of a minor, a disorderly persons offense, in addition to the motor vehicle offense of DWI, for which no jury trial is permitted. No plea bargaining is allowed, though each charge must be proven in court, and the conviction on your record is permanent. Once convicted, drunk drivers of children will receive more jail time than those who did not drunk drive with children in the car.

If you find yourself in this position, it is important that you contact an attorney immediately. For more information, see the attorneys at Chamlin, Rosen, Uliano & Witherington, who can help assess the details associated with your case.

Tiger is lucky. Another professional athlete's domestic dispute has led to another motor vehicle accident, but the result is far more tragic than loss of sponsorships. Cincinnati Bengals wide receiver Chris Henry died today from injuries sustained by falling from a pick up truck, allegedly driven by his fiancée and mother of two of his children. Police will not say whether he fell out or was forced out of the vehicle, but homicide detectives have been assigned to the case and fiancée Loleini Tonga was driving the vehicle.

At age 26, Henry had a history of arrests, including gun, marijuana possession, and assault charges. The Bengals gave him a break after a rough career at West Virginia under then Coach Rich Rodriguez. At his worst, he was called "an embarrassment to himself and the program," and "a one-man crime wave." He had been suspended by the NFL three times, released and then resigned for another chance to "regroup, catch himself, and re-start his life." Recently, despite being plagued by injuries including a dislocated forearm, he was turning things around. Those around him were both proud and hopeful, saying that "When you see him up close, you'll find that you'll like him," that he "has done everything he can to make himself a better person" and is "a great kid with a great heart."

One doesn't have to dig deep to find a cautionary tale for college athletes, for those embroiled in domestic disputes (Steve McNair's death is also tied to trouble with a mistress girlfriend), for those involved with drugs on any level, and even for dangerous driving (how often do people get behind the wheel when they are upset or following a heated argument).

The legal penalties for all of this behavior quickly pile up, and can have a seriously negative impact on your life, whether you are an athlete or not. Costly fines, loss of drivers license, jail time and mandated community service and treatment programs are all possibilities, depending upon you are caught on a first, second or third offense, or the particular circumstances surrounding the incident. It is too bad that successful athletes who make the most of the opportunities that come their way, and who manage to make good choices do not make the headlines.

DUI charges are always a big risk for college level student athletes. Unfortunately, University of Florida defensive end Carlos Dunlap made a really big mistake at a really bad time. With the Southeastern Conference Championship game against Alabama looming in just days, a police officer found the 20-year-old Dunlap asleep at the wheel at 3:25 early Tuesday, December 1st, 2009 while he was searching for a reported reckless driver in the area. The defensive MVP of the Bowl Championship Series national title game had difficulty performing the field sobriety test and refused a breath test. He was arrested and released six hours later without bond, having no prior offenses or failures to appear in court.

Dunlap, who has started every game this season but will not play Saturday, was apparently drinking under age, a common college campus occurrence, like it or not. He then chose to get behind the wheel of a car. He is yet another example of what not to do, as if any further examples were needed. A poor decision can be made by a "good kid" from a "good family," or by someone who has lacked the guidance and role models around him or her - the risks are the same in either case. The consequences of his actions are severe for his athletic career, but he is lucky he (and perhaps his team) is the only one paying for his mistake, as thankfully there was no collision and no one was hurt.

In New Jersey, DUI convictions carry heavy mandatory penalties including loss of license for a minimum of 3-12 months, prison for up to 30 days, fines and fees of up to $3,800.00 as well as 12-48 hours of community service. Failure to pay these fines could result in property liens and wage garnishment. If the driver is under 21 years of age, as Dunlap, there are additional fines, required participation in alcohol education and highway safety programs and more community service.

If you are arrested for DUI in New Jersey, you cannot refuse a breathalizer test like Dunlap did, because consenting to it is a condition of getting your drivers license. If you insist on refusing, you will lose your license, the police will detain you and bring you to a hospital where blood may be drawn.

If you have questions about New Jersey DUI law or how to handle these charges, the attorneys at Chamlin, Rosen, Uliano & Witherington can help.

According to a new study issued by the National Highway Traffic Safety Administration and data from the FBI, Driving Under the Influence citations have increased by nearly 30 percent among females over a 10-year period from 1998 to 2007. These stats are considered "disturbing" by the Transportation Board.

New Jersey Criminal Lawyer Blog's Take: As many are aware there have been national campaigns to raise awareness about the serious consequences of drunk driving. It is important to remember that in New Jersey the blood alcohol content is 0.08. Anything above that level is considered drunk driving in the eyes of New Jersey law. This study shows that more women are getting caught than in previous years. It is important to remember this fact when having social drinks prior to operating a motor vehicle. This study is a good heads up to all women out there that even a couple glasses of wine with dinner could result in an unfortunate DUI.

Feds: Spike in Female DUIs - CBS News 8/19/09

New York Knicks guard Nate Robinson is known for thrilling drives to the hoop on the court; however, off the court it appears he shouldn't be driving anything. Robinson's driver's license was suspended for the 5th time this June stemming from an outstanding summons. Yesterday, Robinson was arrested for driving with a suspended license. Robinson was allegedly pulled over for failure to wear a seat belt at which time the pint-sized dunk champion was discovered to be operating his vehicle without a valid driver's license.

New Jersey Criminal Lawyer Blog's Take: This occured in the State of New York, so their laws naturally govern this situation. In New Jersey, Robinson would be looking at a stiff fine for a first offense, but could face jail time with a second offense. Additionally, his license suspension will most likely be extended. This is no laughing matter despite the fact that Robinson was "tweeting" on his Twitter page during the motor vehicle stop. As one can see from the penalities, driving with a suspended license is an offense that warrants consulting an attorney if charged.

Knicks Star Arrested - New York Post 8/19/09

Knicks Guard Nate Robinson arrested in Bronx - New York Daily News 8/19/09