New Jersey Criminal Defense Journal : New Jersey Criminal Defense Lawyer & Attorney : Alexander M. Iler Law Firm : Monmouth County NJ DWI & Drunk Driving Defense

The Iler Law Firm recently represented a client who sought to have his guilty plea for a DUI conviction vacated (set aside) based on a claim that his prior attorney was ineffective.  The client contacted our office and wanted to know whether he had any defenses to the DUI charge even though he had already pled guilty and had already started serving his sentence.  We explained to him what we believed were potential meritorious defenses to his case.  He told us that his former attorney never told him about any of those defenses.  He told us that if he knew about those potential defenses, he would have never pled guilty, and instead, would have insisted on taking this case to trial. Following a consultation, the client decided, based on our recommendation, to file a motion for post-conviction relief based on ineffective assistance of counsel.  We explained that if successful, this would not result in the charge being dismissed, but rather it would simply vacate his prior DUI conviction and restore the matter to the court's calendar and would allow him to proceed to trial.  We advised the client that he has several potential defenses, including (1) the state’s failure to produce an operator’s card for the officer who performed the alcotest; (2) the state’s failure to produce the operator’s card for the officer who performed the solution change prior to Defendant’s breath test; (3)  a possible technical defense in relation to the less than two minute lock-out between the control test and the first valid breath sample; and (4) the State’s failure to produce “data downloads”.  See  State v. Maricic, 417 N.J. Super. 280 (App. Div. 2010). The client insisted he wanted to take the case to trial and have the opportunity to assert these defenses at that time.

The Firm, on behalf of the client, wrote a brief to court arguing how the client's former attorney ineffectively represented the client and requested the client's guilty plea be vacated.  On the day of the motion, we argued to the judge that fundamental fairness requires that an attorney evaluate all possible defenses to a criminal charge.  We argued that the former attorney's failure to evaluate these defenses with the client was ineffective and the client was prejudiced as a result.  The prejudice, we argued, was that the client insisted he would have gone to trial if he knew about the potential defenses to his client, which he never knew about until he came to our office.

After oral argument, the judge ruled in our client's favor.  The client was very pleased because his driving privileges were restored that day and he now was able to take the matter to trial.  If you feel that you have been given ineffective assistance of counsel by your prior attorney in a DUI or DWI matter, contact our office for a free consultation to see how we can help.  You may be able to reopen your prior case, at which time you may be able to more properly defend your case.  Life has few second chances, a motion for Post-Conviction Relief may be one of them.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Marijuana Production in Oakland:  Who’s in Charge Here? 

In 1996, California became the first state in the nation to legalize marijuana use for medical purposes.  The medical marijuana industry germinated during the Clinton Administration and grew during President George Bush’s tenure, despite the Bush Administration’s opposition.  When Obama took office, he voiced public support for medical marijuana and assured that the Department of Justice would not prosecute patients or dispensaries in states where medical marijuana was legal.  Economies are responsive to political and legal change, and the relaxation in the threat of prosecution led the medical marijuana industry to flower. 

In July 2010, Oakland City Council passed a measure to grant licenses to four industrial-scale pot growers with the provision of hefty ($200,000+) licensing fees and a sales tax beginning at 1.8% and increasing to as much as 12%.  The measure passed with the allure of a potential to raise $38 million for the city, annually.  The Council also saw regulated, industrial-scale growing as a way of reducing small-scale production and the robberies and personal safety issues it sometimes attracts. 

In the months after the measure passed, the City Council considered the rules for regulating the first large-scale marijuana warehouses in the country.  A major issue was to whom to award the four coveted permits, and criteria were created to reward entrepreneurs for best business model, security plan and, of course, being pesticide-free.  In November, voters approved a measure that imposed a 5% business tax on all marijuana growers and dispensaries.  The City Council planned to award the four permits by December 20, 2010.

Then came a major buzzkill—the Obama Administration issued a blunt message that the Department of Justice would prosecute large-scale growers and distributors, and potentially penalize Oakland for getting a cut of the profits.  Another, lesser problem was that the permit process failed to heed state law that was supposed to restrict medical marijuana growing to patient-caregiver collectives.  The City Council went back to redraft the permitting process and bring it into compliance with state law by tying each farm to an individual marijuana dispensary.

For a moment it appeared that a new protocol had been worked out and that the City Council might award five permits.  Councilwoman Desley Brooks had come up with a plan allowing five dispensaries to operate their own industrial-size marijuana farms of up to 50,000 square feet (the Brooks Plan). 

Just as the City Council was getting fired up, the Obama DOJ local, US Attorney Melinda Haag blew the City Council’s high by issuing a warning that Oakland's cultivation ordinance as originally drafted would be illegal could result in federal and state prosecution.[1]  In a letter dated February 1, 2011, Haag wrote: 

"The department is concerned about the Oakland ordinance's creation of a licensing scheme that permits large-scale industrial marijuana cultivation and manufacturing as it authorizes conduct contrary to federal law. . . .  Accordingly, the department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland."

Haag said federal authorities would enforce a crackdown on illegal manufacturing and distribution of marijuana, "even if such activities are permitted under state law" as they violate federal anti-drug laws.  Operators of marijuana farms but also landlords, property owners, financiers and even the city's council members could face prosecution.  Haag made sure to point out that the DOJ won't be focusing its limited resources on prosecuting patients, but distinguished that unlawful manufacturing and distribution was another story. 

Alameda County District Attorney Nancy O'Malley issued a statement agreeing that Brooks Plan violated state law because it defined dispensaries as primary caregivers, which read too broadly the state law provision allowing primary caregivers to grow medical marijuana.  In fact, district attorneys offices throughout the state have basically disregarded this provision of the law has basically since medical marijuana was legalized in 1996, hence the proliferation of garage-grow rooms and backwoods plantations. 

Within the week, City Attorney John Russo withdrew his legal advice and told the City Council to hire a separate, non-governmental attorney.  Russo’s withdrawal doesn’t mean that the City Council has to flush its plan, rather, it’s more an illustration of how fractured his relationship with City Council is becoming.  Just a week before, newly-elected mayor Jean Quan had expressed her desire to have her long-time lawyer friend Dan Siegel act as an unpaid legal adviser for the city, and the two had sparred over the legality of that.[2]  Furthermore, U.S. Attorney Haag issued her letter in response to City Attorney Russo’s request for guidance, but Mayor Jean Quan says the Council never asked Russo to seek advice. 

The fate of Oakland’s large-scale medical marijuana production is uncertain.  The City Council’s Public Safety Committee will discuss Brooks' plan and Russo proposed amendments at their meeting on February 8. The full council will discuss the issue again at their meeting on February 15.  The nation is watching--whatever happens in Oakland could have repercussions not only in California but also in other states that have legalized medical marijuana, like Arizona. 

SOURCES:

http://www.mercurynews.com/breaking-news/ci_17322521

http://www.baycitizen.org/marijuana/story/doj-oakland-industrial-pot-farms-illegal/

http://www.ibtimes.com/articles/109222/20110205/oakland-council-warned-by-feds-not-to-break-us-pot-law.htm#

http://articles.sfgate.com/2011-02-03/bay-area/27098495_1_marijuana-farm-ordinance-dispensaries-pot

About the Author

San Mateo DUI Lawyer, Thomas Greenberg, is a native of California and a graduate of the University of California at Berkeley. He was formerly a highly respected deputy public defender and is now an experienced  San Mateo criminal defense attorney who has provided effective legal services to literally thousands of clients

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

 On November 28, 2000, two men were convicted of the torture and murders of a mother and her son in their Barnegat, New Jersey home.  However, about a year ago, their convictions were reversed by the Appellate Division of New Jersey.  This occurred despite an overwhelming amount of evidence linking the two men to these murders.  Defense attorneys argued that their clients were unfairly prejudiced because during trial, another incident of robbery and shootings at a barbershop had been brought up in which the defendants had taken part.  The defense attorneys argued that this had unfairly prejudiced the defendants since there had been too much detail about the barbershop incident including the amount of blood on the floor, the victims that were shot, etc. during the trial of the murder of the mother and son.  The gun that was used at the barbershop had in fact linked the two defendants to the murders that had occurred in 2000.  For additional information on this case please refer to the Asbury Park Press article entitled “Ocean County prosecutors to court: Reinstate Barnegat murder convictions”

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I gave a talk last night at the New Jersey State Bar Association, Municipal Court Section meeting in New Brunswick at the NJ Law Center.  The subject of my talk was the ongoing temperature probe issue related to the Alcotest machines in use in every municipality in New Jersey.  As some of you already know my firm has a case, currently at the appellate division, captioned State v. Holland.  In State v. Holland, we sought to suppress our client's Alcotest readings by objecting to the State's unilateral and unsanctioned substitution of the Drager Safety Ertco Hart temperature probe, which has been sanctioned by the New Jersey Supreme Court, with a Control Company temperature probe.  See our previous post

here

on this issue.  

What really amazed me about the presentation was that I got the impression that lawyers who do DWi defense work are still not using this as a routine part of their defense.  In addition, I had occasion to speak to a municipal court Judge who sits in Passaic County who said that in the three towns he sits in no one has brought up the issue yet!  This amazes me, as this is such a simple defense which when handled properly, can often get the readings out and reduce a client's sentence from a 7 month suspension to a 3 month suspension.

As Jeff Gold, Esq., my co-presenter at the lecture said, this is really a three tiered defense to a DWI with readings.  First, the defense attorney makes the basic argument that the State has failed to provide one of the foundational documents, and therefore the readings should be suppressed.  Failing that, the attorney moves on to stage two of the defense which is to mount a technical defense case and really point out to the judge the technical differences between the two devices and why the Ertco Hart is a superior device.  And, failing that, the defense attorney needs to be prepared to take the case up the ladder on appeal after a full blown trial.  Too many municipal court practitioners are all too willing to just put a plea through when they can be fighting this issue to the end for their client.  Hire a lawyer who is willing to go to the mat for you, it may cost a little extra, but is well worth the results you will achieve.  The lawyers at the Iler Law Firm are willing to go that extra mile for you.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Monday November 8, 2010, we are happy to announce a great success story for one of our clients who stood trial in Essex County on 2nd degree Aggravated Assault charges, as well as Unlawful Possession of a Weapon and Possession of a Weapon for an Unlawful Purpose charges.  

Our client was involved in an altercation and was attacked by a 63 year old man with a pair of hedge clippers.  In defending himself, he sought to ward off the attacker by wielding a PVC pipe, which unfortunately blinded the attacker.  Our client was charged with 2nd degree Aggravated Assault in violation of N.J.S.A 2C:12-1(b), Unlawful Possession of a Weapon in violation of N.J.S.A. 2C:39-5(d) and Possession of a Weapon for an Unlawful Purpose in violation of N.J.S.A. 2C:39-4(d).

After a 5 day jury trial my client was found not guilty an all charges including the lesser included offenses of Aggravated Assault with Significant Bodily Injury in violation of N.J.S.A. 2C:12-1b(7), Simple Assault (N.J.S.A. 2C:12-1a(1) and Simple Assault Mutual Fighting in violation of N.J.S.A. 2C:12-1a(1).

On behalf of my client I was able to mount a successful self defense strategy and the jury reached a unanimous not guilty verdict!  It was nice to see a jury do the right thing and listen carefully to both sides of a story, judge the credibility of witnesses properly and reach a just conclusion.  My best wishes and thoughts go out to my client who is now fully enjoying his freedom for the first time in over a year.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Iler Law Firm was recently featured in an Asbury Park Press article concerning Megan's Law and a statutory provision which allows certain offenders to file a Motion to be removed from Megan's Law registration requirements after fifteen (15) years. For the full text of the article, see "Some sex offenders freed from Megan's Law monitoring".

Here are a few important things to keep in mind concerning Megan's Law and these motions. First, Megan's Law governs all those who have been convicted or plead guilty to a "sex offense" in New Jersey or another State. There are a wide range of sex offenses that put a defendant into this category. Now, the legislature, when enacting Megan's Law, saw fit to create an "out clause" which allows certain offenders to apply for removal from Megan's Law registration requirements if they meet certain criteria. The statute which governs this Motion is N.J.S.A. 2C:7-2(f) which provides:

f. Except as provided in subsection g. of this section, a person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.

Subsection (g) provides:

g. A person required to register under this section who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for more than one sex offense as defined in subsection b. of this section or who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for aggravated sexual assault pursuant to subsection a. of N.J.S.A. 2C:14-2 or sexual assault pursuant to paragraph (1) of subsection c. of N.J.S.A 2C:14-2 is not eligible under subsection f. of this section to make application to the Superior Court of this State to terminate the registration obligation.

Moreover, if the defendant was convicted of a serious sex crime such as rape or most offenses involving children, the individual is not eligible to be removed from Megan's Law EVER. Furthermore, if the individual meets these initial requirements, a comprehensive psychological evaluation is conducted and a report is generated for the Court concerning the defendant and risk that the defendant poses to society. Testimony of the psychologist may also be required by the Judge. Finally, if the registrant meets all of these requirements then the Assignment Judge in the County in which the registrant resides determines if the candidate is suitable for removal. The State also typically submits a brief and is heard on oral argument if they oppose the removal of the individual from the registration requirements.

As a result, it is important to remember that the worst offenders will never be eligible to be removed from Megan's law. Further, individuals who have committed more than one sex offense will never be eligible to be removed. In conclusion, those who are eligible have not committed any offenses whatsoever in fifteen (15) years and have been law abiding members of society. Therefore, the legislature provided them with a removal clause which has significant safeguards.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I recently represented two co-defendants charged with marijuana possession under 50 grams and possession of drug paraphernalia in Ocean City Municipal Court. These two young men had no prior criminal record and waived any conflict of interest in the firm representing both co-defendants.

Upon receipt of the discovery package it became very clear that there was an issue with the search. The police report narrative stated that the officer was on traffic patrol when he saw the driver go into the Sunoco station and leave very quickly without buying anything and then when the driver came out of the store he was looking around like he was looking for someone when he observed the officer across the street. At this point, the driver returned to his vehicle and began driving toward the exit of the city. The officer then stated that he noticed the driver was not wearing his seatbelt which was the probable cause to pull the vehicle over. Once the stop was initiated, the officer smelled marijuana inside the vehicle and the driver consented to a search of the vehicle which led to the seiizure of marijuana and possession charges.

However, the probable cause for the stop was questionable at best. If there was no reason for the officer to pull the vehicle over then any subsequent search or violation must be suppressed based on the "fruit of the poisonous tree" doctrine. Moreover, although the probable cause for the stop was the alleged seatbelt violation, the officer failed to issue the driver a summons for this violation. As a result, after a conference with the municipal prosecutor and a potential motion to suppress the illegally seized evidence on the table, the prosecutor agreed to dismiss the charges based on the questionable nature of the search and the lack of probable cause for the initial stop.

This was a great success for the clients who were able to avoid a criminal charge on their record along with the six (6) month driver's license suspension that accompanies these charges.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I represented a client this week charged with aggravated assault in Burlington County Superior Court. The defendant allegedly recklessly discharged his firearm in his home which led to his roommate being shot in the forearm. My client is an active member of the United States Air Force and lawfully possessed the weapon. However, he was charged with aggravated assault under N.J.S.A. 2C:12-1(b)(3) for recklessly causing an injury to another. This is a fourth degree charge and the plea offer was eighteen (18) months in prison without parole.

After an initial investigation, it became very clear that my client did not shoot the alleged victim in the arm but rather the alleged victim shot himself in the forearm. This was an alcohol related incident and the alleged victim told the police that the defendant shot him in the arm accidentally when he was cleaning the gun because the alleged victim assumed my client would not be prosecuted and the alleged victim was concerned that he would get into trouble based on the fact that he did not have a permit for this firearm and it was not his gun. Based on this investigation and the alleged victim changing his story, I was able to negotiate a significant downgrade of the charge to a petty disorderly persons offense of creating a hazardous condition. My client paid a fine and the case is now resolved. This was a tremendous result for the client who was facing eighteen (18) months in prison and who was able to avoid a felony charge on his record.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Snooki's disorderly conduct case was resolved in Seaside Heights, New Jersey yesterday. The case went as expected. Snooki plead guilty to violating a municipal ordinance for ""interfering with the enjoyment of the quiet use of the beach by others." She was given a $500.00 fine and two (2) days community service. This plea agreement allows her to avoid any jail time and to avoid a permanent criminal charge on her record. Typically, disorderly conduct charges in Belmar, Point Pleasant, Seaside Heights, or Manasquan are all resolved in this manner if an experienced criminal defense attorney is retained to represent the defendant. The fines vary depending on the municipality: for example, a violation of this same ordinance in Belmar has a fine of $1,250.00. Very expensive for having a little too much fun at the beach.

For additional information on Snooki's case, please see the Asbury Park Press article entitled, "Snooki fined $500 for annoying beachgoers".

• Email This
• Print
• Comments
• Trackbacks
• Share Link