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

The landmark DWI decision of State v. Chun was handed down in March 2008. In that case, the New Jersey Supreme Court found the Alcotest breath testing machine for DWI prosecutions to be reliable enough for use in New Jersey courts. The Court required that certain changes be made "forthwith" in the Order dated March 17, 2008. The New Jersey Bar filed a lawsuit this week alleging that the Attorney General's Office has failed to make the necessary upgrades to the software and to establish a public database of Alcotest results. As you can see, it has been more than a year since the Court's decision in Chun.

The New Jersey Bar seeks an Order to Show Cause why the State hasn't complied with the software and database requirements and requests that the Court appoint a special master to hear applications for enforcement of the Chun decision. The Bar alleges that the manufacturer devised the software revisions shortly after Chun but that the State has not approved the implementation of same. Further, the database was to include any and all Alcotest breath samples and readings taken in New Jersey so DWI defense attorneys could compare their client's readings to others around the state.

It will be very interesting to see how this turns out. This could have a significant impact on DWI prosecutions in New Jersey where Alcotest readings are used to prove intoxication.

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Plaxico Burress is back in court today. The New York Giants wide receiver is expected in court today for another appearance concerning his gun possession charges in New York. Currently, the defense team is in negotiations with prosecutors over a potential plea deal. As a result, the appearance today will most likely result in an adjournment while both sides attempt to work out a deal for the all pro wide receiver.

Burress has been charged with second-degree criminal possession of a weapon, a felony that carries a minimum prison sentence of 3 1/2 years in prison and a maximum of 15 years upon conviction. According to a recent article by the AP, more than eight out of ten people arrested in New York City last year on the same charge received reduced charges, although some did include jail time. Further, only about 14% of the people charged last year with the same charge that Burress faces were ultimately convicted of it. Of the 1,248 people in New York City initially arrested on second-degree criminal weapons possession in 2008, 184 were convicted of the charge. About half were convicted of a misdemeanor or violation, and the remaining convictions were usually lesser felonies with some jail time.

So about half of the second degree possession of a weapon charges last year ended up as a misdemeanor or a violation which would almost certainly result in no jail time for a first time offender like Burress. Moreover, prosecutors typically consider past criminal history, arrest circumstances, and the reason for having the weapon when offering reduced charges in gun possession cases. Burress has no criminal record and he was carrying the gun for safety purposes as another New York Giant, Steve Smith, was robbed at gunpoint three days earlier.

Based on all the circumstances, it looks like Burress should receive a downgraded charge and stay out of jail. However, Mayor Bloomberg has been extremely outspoken on this issue and may want to make a statement using Burress. It would be a real shame if Burress spent years in prison in order to make a political statement. In any other case, this charge would almost always end up in a plea agreement to a downgraded offense. Just because he is a celebrity and this is a well known case doesn't mean that the result should be any different.

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The circumstances surrounding charges for aggravated assault in New Jersey range from bar fights to domestic disputes. The most common charges for aggravated assault in NJ are contained in N.J.S.A. 2C:12-1(b), sections (1)-(3) which read in pertinent part:

§ 2C:12-1. Assault

b. Aggravated assault. A person is guilty of aggravated assault if he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon;

Under section (1), the charge is considered a second degree offense which involves between five (5) and ten (10) years in prison. Under section (2), the defendant is charged with third degree aggravated assault and is facing one (1) to five (5) years in prison. Under section (3), the defendant is looking at a fourth degree crime which involves up to eighteen (18) months incarceration if convicted. For the entire aggravated assault statute, please see "Aggravated Assault Statute: N.J.S.A. 2C:12-1".

The difference between aggravated assault and simple assault in New Jersey typically depends on the amount of force used and the injuries inflicted on the other party. In defending aggravated assault cases in New Jersey, I have found success asserting defenses such as self-defense and consensual fighting. Self defense is available if the defendant only used force in defending himself and did not use any force above and beyond which was necessary to maintain self preservation. Further, the defendant must have ceased this use of force once the threat was abated. Thus, if he or she continued to attack the other party after they were clearly defenseless, it will be much more difficult to utilize self defense as a viable defense.

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New Jersey police stopped a New York man driving a van in Woodbridge and seized 317 pounds of marijuana from the van. Think about how much pot that actually is.....317 pounds. The estimated value of the marijuana is $800,000.

NJ Police stopped the vehicle after receiving a tip that marijuana was being shipped from Los Angeles to Queens, N.Y. and that a transfer of the product would occur in Woodbridge, N.J. The driver has been charged with possession of marijuana under N.J.S.A. 2C:35-10 (over 50 grams of marijuana) and possession with intent to distribute under N.J.S.A. 2C:35-5 (25 pounds or more). The possession charge is only a fourth degree offense which involves up to 18 months in prison but the possession with intent charge is a first degree offense which involves 10 to 20 years in prison. The driver is being held at Middlesex County Jail on $100,000 bail.

Usually marijuana charges are the least serious offenses in terms of drug charges in New Jersey. However, if a suspect is caught with a significant amount of marijuana (more than 25 pounds), like in this case, the defendant is facing extensive prison time.

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A former Morris County Municipal Court judge allegedly burped 78 times in order to avoid a breathalyzer test to determine his blood alcohol content (BAC). George Korpita, who previously served as the Municipal Court judge in Dover, Rockaway Borough, and Victory Gardens in Morris County, NJ was stopped on February 15, 2008 for suspicion of driving while intoxicated (DWI).

The reason for Korpita's burping is clear: there is a 20 minute observation period in New Jersey under State v. Chun which means that law enforcement must stop and observe a suspect for twenty minutes prior to conducting the breath test to ensure that 1) the suspect has not consumed alcohol within twenty minutes of the test, 2) the suspect did not throw up, spit up, or burp within twenty minutes of the breath test, and (3) the suspect did not chew gum or any other substance within twenty minutes of the exam. If any of these issues arise it can effect the breath test results and then the test results will not be reliable.

Thus, the suspect in this case, George Korpita, as an attorney and municipal court judge, knew the law and burped 78 times in order to prevent law enforcement from conducting the breath test. Each time he burps the twenty minute waiting period must start again. Korpita's attorney claimed that the burping arose due to indigestion and anxiety. I sincerely doubt that the judge will accept this argument. Korpita's conduct essentially constitutes a refusal to submit to a breath test and he was charged with both DWI and Refusal in this case.

For additional information on this case, see "Former Morris County judge burped 78 times to avoid DWI test, police officer testifies".

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I appeared in Municipal Court this morning on behalf of a client. He was charged with Speeding under N.J.S.A. 39:4-98 and Reckless Driving under N.J.S.A. 39:4-96. He was paced by the New Jersey State Police going 110 m.p.h. in a 65 m.p.h. zone. He is a resident of Virginia and has a Virginia driver's license and was only in New Jersey visiting friends.

As you can see, this is a difficult case because he was traveling at an extremely high rate of speed. Further, there are no issues with regard to radar detection and the like because he was paced by the law enforcement officer. Thus, it is essentially the police officer's word against my client if we take this case to trial. Needless to say, I went to court looking for a plea and a positive resolution for my client. My client is actually moving back to Korea within the next month. Therefore, even if they suspend his license, which most judges require if you are traveling at a speed of 90 m.p.h. or faster, it will not have an impact on his life because he will be out of the country. My client's greatest concern was staying out of jail because penalties for reckless driving can include up to sixty (60) days in prison. Further, my client was looking at five (5) points for the speeding ticket (because he was going 30+ m.p.h. over the legal limit) and five (5) points for the reckless driving ticket. These ten (10) points on his license would have significant financial implications in terms of fines and insurance surcharges and his license could also be suspended once twelve (12) points or more are accumulated.
 

I was able to work out a favorable deal for my client. He is able to keep his license for the next month while he prepares to move back to Korea. Then, I will enter a plea by affidavit on his behalf in a month or so and he will plead guilty to the speeding ticket and the reckless driving ticket will be dismissed. Thus, he does not have to appear in court as he lives in Virginia and he may actually be in Korea by the time the plea is entered. He merely signs an affidavit stating that he understands the charges and wishes to plead guilty to the speeding ticket charge with the understanding that the reckless driving charge will be dismissed. He sends the Court a check for the fines and court costs and the matter is resolved. This was a great success as the client was able to keep his license for the next month while he arranges his move to Korea and I was also able to keep him out of jail.

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It looks like sports betting may be coming to New Jersey in the near future. A New Jersey lawmaker recently sued to overturn the Professional and Amateur Sports Protection Act. The 1992 law restricts sports betting to four states: Nevada, Delaware, Montana, and Oregon. State Senator Richard Lesniak argues that sports betting already exists and New Jersey could really use the revenue from taxing such a large industry. The Plaintiff in the lawsuit believes that sports betting could become a $10 billion dollar a year industry in New Jersey by 2011 which could generate nearly $100 million dollars in tax revenues for the State. The Plaintiff argues that the law is unconstitutional because it discriminates against the other states while allowing four states to conduct sports betting activities.

Currently, sports betting is illegal in New Jersey. Under N.J.S.A. 2C:37-2:

§ 2C:37-2. Promoting gambling

   a. Promoting Gambling Defined. A person is guilty of promoting gambling when he knowingly:

(1) Accepts or receives money or other property, pursuant to an agreement or understanding with any person whereby he participates or will participate in the proceeds of gambling activity; or

(2) Engages in conduct, which materially aids any form of gambling activity. Such conduct includes but is not limited to conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation.

b. Grading. A person who violates the provisions of subsection a. by:

(1) Engaging in bookmaking to the extent he receives or accepts in any one day more than five bets totaling more than $ 1,000.00; or

(2) Receiving, in connection with a lottery or policy scheme or enterprise (a) money or written records from a person other than a player whose chances or plays are represented by such money or records, or (b) more than $ 100.00 in any one day of money played in such scheme or enterprise, is guilty of a crime of the third degree and notwithstanding the provisions of section 2C:43-3 shall be subject to a fine of not more than $ 35,000.00 and any other appropriate disposition authorized by N.J.S.A. 2C:43-2b.

A person who violates the provisions of subsection a. by engaging in bookmaking to the extent he receives or accepts three or more bets in any two-week period is guilty of a crime of the fourth degree and notwithstanding the provisions of section 2C:43-3 shall be subject to a fine of not more than $ 25,000.00 and any other appropriate disposition authorized by N.J.S.2C:43-2b. Otherwise, promoting gambling is a disorderly persons offense and notwithstanding the provisions of section 2C:43-3 shall be subject to a fine of not more than $ 10,000.00 and any other appropriate disposition authorized by N.J.S.2C:43-2b.

c. It is a defense to a prosecution under subsection a. that the person participated only as a player. It shall be the burden of the defendant to prove by clear and convincing evidence his status as such player.

Thus, first the Professional and Amateur Sports Protection Act must be found unconstitutional by the courts because it treats four (4) states different than the other states by allowing sports betting there. Then, New Jersey will have to repeal the criminal laws which make it illegal to conduct sports betting in the State. We'll see if this actually happens. For additional information on this story, please see the Asbury Park Press.

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I read an interesting article yesterday on yahoo.com called "More Internet Predators are Challenging Agents". This article discussed a special unit in Wisconsin called the "Internet Crimes Against Children" unit, or "ICAC" unit, which combats sexual predators on the internent. According to the article, the National Center for Missing and Exploited Children's cyber tip line took 85,301 reports of child porn and 8,787 reports of online enticement last year. Investigations of Internet crimes against children resulted in 3,000 arrests nationwide in 2008, according to the U.S. Department of Justice. This is a clearly a growing and serious problem in the United States.

I previously worked for the United States Attorney's Office in Newark under Chris Christie. While working there, I assisted the "Sex Crimes" unit and worked on a trial team that was prosecuting one of these "online enticement" cases. In our case, the defendant was a 40+ year old car salesman who seemed like a normal everyday guy. However, he was involved in an online relationship with what he believed to be a 14 year old girl. Unfortunately for him, this 14 year old girl was actually an undercover FBI agent. It was a pleasure working with the assistant United States Attorneys and the FBI on this project. In the end, the defendant decided against bringing the matter to trial because the evidence was overwhelming against him. He reached a plea agreement with the federal prosecutors.

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It is very satisfying as an attorney when your hard work pays off to the benefit of a client. Our firm recently represented a client in Morristown Municipal Court who was charged with driving while intoxicated (DWI). Defendant was arrested and charged with DWI in February 2008. Over the past year, there have been more than a half-dozen court appearances related to this charge. First, the State failed to provide discovery evidence to my office for the first several months of the case. Specifically, the State failed to provide the Alcotest Operator's card as well as the audio and videotapes relating to our client's arrest. Then, my office made several motions to dismiss the case for failure to provide discovery. Unfortunately, these motions were denied. However, the judge did mark the case "try or dismiss" which means that, if the State failed to provide the discovery evidence before the next court appearance, the case would be dismissed. Then, the State failed to provide discovery evidence at the next court appearance. However, the judge who made the previous "try or dismiss" marking was on vacation and a substitute judge was filling in for him. As a result, the substitute judge failed to dismiss the case and denied our motion to dismiss once again.

The client decided to appeal this ruling to the Superior Court. Any decisions or findings of the Municipal Court can be appealed to the County if necessary. Thus, we appealed this ruling to the County and were heard in Morristown Superior Court in November of 2008. Once again, our motion was denied. However, the Superior Court judge stated on the record that this matter should be disposed of immediately. In New Jersey, there is a directive from the New Jersey Supreme Court that DWI cases should be disposed of within sixty (60) days. As you can see, this case has taken more than a year to resolve.

Now, the case was once again adjourned by the State because the State could not produce the officers at trial for the next listing. Further, the police officer was unable to testify as to the twenty minute observation period required under State v. Chun. Essentially, the police must stop and observe a suspect for twenty minutes prior to conducting the breath test to ensure that they have not consumed any alcohol twenty minutes before the test, that they did not throw up or spit up anything during that time, and that they did not chew gum or any other substance within 20 minutes of the exam. Any of these things can effect the breath test results and then the test results will not be reliable. Thus, after more than a year of criminal defense work, a half dozen court appearances, and an appeal to the County, we have worked out a favorable deal for our client. The breath test results will not be admissible based on the violation of the twenty minute waiting period. However, the State can still use the field sobriety tests to prove intoxication. Therefore, our client will plead guilty to DWI but will only be looking at 3 months license suspension rather than 7 months. Further, this guilty plea is contingent upon our ability to appeal this matter to the county one more time because of the violation of my client's right to a speedy trial. If the Superior Court grants our appeal, this case will be dismissed entirely. This is an extremely favorable outcome for my client, who had Alcotest readings of .21.

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I read an interesting article in the Asbury Park Press regarding professional basketball player Earl "JR" Smith III. He is a basketball star from the State of New Jersey who now plays professionally for the Denver Nuggets. He was drafted in 2004 by the New Orleans Hornets after playing for New Jersey's own St. Benedict's.

Smith is facing traffic charges relating to a 2007 fatal motor vehicle accident. On June 9, 2007 Smith's friend Andre Bell, who was the passenger in his 2003 GMC Yukon, was critically injured in a motor vehicle accident. Allegedly, Smith drove his vehicle around a stopped car and through a stop sign. As Smith drove through the intersection, his vehicle was struck by another car. His friend Andre Bell died of head injuries two days later.

A Monmouth County grand jury declined to indict on any criminal charges related to the accident. Thus, his case has been remanded to Municipal Court and now he is facing only traffic offenses. The charges include improper passing, failure to stop, reckless driving, and speeding (67 mph in a 35 mph zone). He is facing a total of 16 points on his New Jersey driver's license and up to ninety (90) days in jail. Therefore, if he pleads guilty to these charges, his license will be suspended based on the accumulation of points. You are only permitted to have 12 points on your license at any time or you face a suspension. For additional information, see the Asbury Park Press article entitled "Basketball Star Likely to Plead Guilty".

This is a terrible tragedy for everyone involved. The driver will live with this mistake the rest of his life. Further, the family of the victim will never recover this loss of a loved one.

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The New Jersey statute which governs the "implied consent" of drivers to provide a breath sample is N.J.S.A. 39:4-50.2 which provides:

§ 39:4-50.2. Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50 or section 1 of P.L.1992, c.189.

In New Jersey, if you refuse to provide a breath sample when asked to do so by police, you will be charged with Refusal to submit to a breath test. Essentially, when you operate a motor vehicle on the roads of the State of New Jersey, you consent to provide a breath sample if required by law enforcement. However, these breath samples can only be required if police have a reasonable basis to believe that you are driving under the influence of alcohol or drugs. The reasonable basis is usually a combination of the reason for the initial traffic stop (such as weaving in and out of your lane or being in an accident) and the field sobriety tests which are conducted by police if they suspect the driver is intoxicated. These field sobriety tests can range anywhere from reciting the alphabet backwards, to the walk and turn test or the one leg stand test.

Thus, if you are asked to provide a breath sample you must do so or you will be charged with refusal under N.J.S.A. 39:4-50.4a. Under this statute, you are facing a license suspension of seven (7) months to one (1) year.

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In New Jersey, charges for distribution of marijuana depend on the weight of the drugs in your possession. The New Jersey statute governing marijuana charges for possession with intent to distribute is N.J.S.A. 2C:35-5 which provides in relevant part:

§ 2C:35-5. Manufacturing, distributing or dispensing

a. Except as authorized by P.L. 1970, c. 226, it shall be unlawful for any person knowingly or purposely:

(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or

(2) To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.

b. Any person who violates subsection a. with respect to:

(10) (a) Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.A. 2C:43-3, a fine of up to $ 300,000.00 may be imposed;

(b) Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;

(11) Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.A. 2C:43-3, a fine of up to $ 25,000.00 may be imposed;

(12) Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;

As the above statute enumerates, if you are caught with twenty-five (25) pounds or more of marijuana, this is a first degree offense which involves ten (10) to twenty (20) years in prison. If you are caught with more than five (5) pounds of weed but less than twenty-five (25) pounds, this is a second degree offense which involves five (5) to ten (10) years in prison. If you are caught with more than one (1) ounce of pot but less than five (5) pounds, this will be graded as a third degree crime which entails one (1) to five (5) years in prison. Finally, if you are caught with less than one (1) ounce of marijuana, this is a fourth degree offense which involves up to eighteen (18) months incarceration.

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I recently represented a client who is charged with possessing and displaying a fraudulent insurance card to a law enforcement officer. The statute governing this offense is N.J.S.A. 2C:21-2.3 which provides:

§ 2C:21-2.3. Producing, selling, offering, displaying, possessing fraudulent motor vehicle insurance ID cards

a. A person who knowingly produces, sells, offers or exposes for sale a document, printed form or other writing which simulates a motor vehicle insurance identification card is guilty of a crime of the third degree. In addition to any other penalty imposed, a person convicted under this section shall be ordered by the court to perform community service for a period of 30 days.

b. A person who exhibits or displays to a law enforcement officer or a person conducting a motor vehicle inspection pursuant to chapter 8 of Title 39 of the Revised Statutes a falsely made, forged, altered, counterfeited or simulated motor vehicle insurance identification card, knowing that the insurance identification card was falsely made, forged, altered, counterfeited or simulated, commits a crime of the fourth degree.

c. A person who possesses a falsely made, forged, altered, counterfeited or simulated motor vehicle insurance identification card, knowing that the insurance identification card was falsely made, forged, altered, counterfeited or simulated, commits a disorderly persons offense.

As you can see, this is a very serious offense. Under subsection (a), this is a third degree offense and the individual is facing one (1) to five (5) years in prison. Under subsection (b), this is graded as a fourth degree offense and the individual is looking at up to eighteen (18) months in prison. Finally, under subsection (c), this is a disorderly persons offense and the defendant is facing up to six (6) months in prison. All of these offenses result in a permanent criminal charge on your record. Finally, if you display a false insurance card you will also be charged with driving without insurance under N.J.S.A. 39:6B-2 which is a serious traffic offense. For a first offense, the fine is between $300 and $1000, it requires a one year license suspension, and you will also pay motor vehicle surcharges and court costs.

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Many times individuals come to my office looking for an expungement of a past criminal offense or arrest. There are certain waiting periods and procedures that must be followed depending on the associated criminal charge.

The first question that must be answered is "What is an expungement?" An expungement is essentially the extraction and isolation of all records associated with a criminal offense in the New Jersey criminal justice system. Therefore, any and all records on file with any court or law enforcement office in the State will be extracted and isolated. Even though the records are not destroyed, it is as though the records don't exist. This is extremely important when applying for jobs as this criminal offense and arrest will no longer show up on your permanent record.

The second question that must be answered is "Is my criminal conviction expungable?" This is not as easy to answer. Depending on your charge, there is typically a waiting period before your conviction is subject to expungement. Moreover, there are certain charges in New Jersey that are not subject to expungement at all. For example, kidnapping, robbery, and aggravated sexual assault are not subject to expungement in New Jersey. However, most charges are subject to expungement after the waiting period. For indictable offenses, the waiting period is ten (10) years. For disorderly persons offenses and petty disorderly persons offenses, the waiting period is five (5) years. For municipal ordinances, the waiting period is two (2) years. For an arrest that did not result in a conviction, there is no waiting period and you can apply for an expungement immediately. For additional information on expungements, please feel free to contact my office for immediate assistance.

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Many times individuals charged with DWI come to my Red Bank, NJ office and ask "What is a breathalyzer test and what does it do?" Here is a brief overview of breathalyzer tests and their relevance to New Jersey DWI cases.

The New Jersey Drinking and Driving Statute, N.J.S.A. 39:4-50, explicitly discusses the use of a breath-alcohol test to determine a suspected drunk driver's blood alcohol concentration (BAC). Under New Jersey Law, operators of motor vehicles give their "implied consent" to submit to a breath testing device when required. Thus, if you drive in the State of NJ you must submit to a breathalyzer when required by police or you will be charged with Refusal to Submit to a Breath Test (which includes the same penalties as driving while intoxicated). The breathalyzer test is the primary method by which law enforcement accurately determine a suspected intoxicated driver's blood alcohol content.

In Romano v. Kimmelman, the New Jersey Supreme Court held that the responsibility for establishing all of the various conditions of admissibility of breathalyzer results is to be allocated to the State. Thus, it is the municipal prosecutor's responsibility to establish all the evidential proofs such as the breathalyzer machine functioning properly, that the machine was in proper working condition, and that the test was correctly administered. The State must also show that the individual who administered the test was authorized to do so. The New Jersey Attorney General is required to approve the methods of testing as well as the training and qualifications of persons who administer breathalyzer tests. Individuals who seek to adminster these tests must be certified to do so. The certification is basically a license to conduct breath tests on drivers in the State of NJ. This certification or license may be revoked by the Attorney General. Moreover, the license has an expiration date. In fact, the breathalyzer operator's certificate is only valid for the year in which is was issued and the following two years. Finally, breathalyzer operators are required to undergo periodic retraining and re-certification.

As a result, there are many potential challenges to a driving while intoxicated (DWI) charge. Although plea bargaining DWI charges is illegal in NJ, the charge may be dismissed entirely if there are issues surrounding the traffic stop, proof of intoxication, or proof of operation of the vehicle. Therefore, it is important to consult with an experienced DWI lawyer when facing these serious charges.

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I watched an interesting story on "60 Minutes" last night concerning eyewitness identifications and the reliability of this evidence. Since the inception of DNA evidence, more than 220 criminal defendants in the United States have been exonerated because their DNA shows that they were not the individual that committed the crime for which they were convicted. More than 75% of these false convictions were based on faulty eyewitness identifications.

An eyewitness identification is considered essential evidence at trial. First, the victim or third person was present at the scene and is able to identify the individual that they believe committed the crime. Second, these witnesses (most times) have no reason to lie so the jury considers these identifications very persuasive. However, history and science has proven that these eyewitness ID's are not always reliable.

The biggest problem has arisen when the witness is shown a photo array or a lineup in which the actual perpetrator is not included. Many times the witness identifies someone who looks similar to the actual perpetrator and then their mind convinces them that this new individual was actually the person that committed the crime. To start, as human beings we always like to be right and we typically rely on our first instict. As a result, in the witnesses mind, they actually see this new individual's face as the person who committed the crime rather than the actual perpetrator. In fact, even when DNA evidence exonerates the innocent person, the witness or victim has a hard time believing that they were wrong. Further, the witness or victim should be able to identify the actual perpetrator right away in the photo array or lineup. If they have to take more than a minute and even several minutes to examine each individual then there is a very good chance that the actual perpetrator of the crime is not included in the lineup or photo array.

Therefore, it is important to consider eyewitness identifications along with all the other evidence before determining, beyond a reasonable doubt, that the defendant is guilty of the offense charged. If there is other evidence such as a weapon or other circumstantial evidence to support the eyewitness ID, then there is an extremely solid case against the defendant. However, if the case relies solely on an eyewitness ID and there is little other evidence to support a conviction, the jury must remember that these eyewitness ID's are not infallible and that these human beings do make mistakes. It is a real shame when a person loses years of their life in prison for a crime they did not commit. We shouldn't have to rely on DNA evidence down the road to exonerate them.

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I recently represented a client in Hillside Municipal Court charged with leaving the scene of an accident. This is a fairly serious traffic offense in New Jersey. The statute governing this charge is N.J.S.A. 39:4-129. To read the entire statute, please visit my firm website at "The Iler Law Firm.Com". The penalties for a first offense include a one (1) year license suspension, a fine of $2,500 to $5,000, and potential imprisonment of 180 days if the accident resulted in injury or death to another. Also, if the accident results in an injury the leaving the scene charge causes eight (8) points on your New Jersey Driver's license. If the accident does not result in injury, it causes two (2) points on your license. Remember, if you rack up between twelve (12) and fifteen (15) points on your license in a two year period, your license is subject to suspension.

The statute requires that a driver immediately stop a vehicle once he or she is involved in an accident. This should be done at the scene of the accident or as close to the scene as possible. The driver must then satisfy the requirements of N.J.S.A. 39:4-129(c) which requires the driver provide his name and address and display his driver's license and registration for the vehicle to the other driver or to the police officer at the scene. Also, if anyone is injured the driver must provide "reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person." Finally, if the other vehicle is unattended (i.e. you hit a parked car), you must attempt to find the driver and if you are unable to locate him or her you must create a written notice with your contact information and place it on the other vehicle or notify the local police department.

In my case, the driver struck a pedestrian who was talking on her cell phone while walking in the street. The driver essentially "rolled into her" and was not traveling at a high rate of speed. The driver stopped and asked the pedestrian if she was alright and offered to provide her with any assistance required. The pedestrian was clearly upset by the incident and told the driver she was fine and to leave her alone. Then, in a peculiar twist, the driver received tickets in the mail for careless driving, failure to yield, and leaving the scene of an accident. He hired us to defend him against these charges. As a result, I was able to get the leaving the scene of an accident charge dismissed because, I argued, the driver met his burden under the statute. He stopped, provided her with his information, and asked her if she needed medical assistance. Thus, he was not guilty of leaving the scene of an accident and the charge was dismissed.

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A recent New Jersey Supreme Court decision considered potential civil commitment under the Sexually Violent Predator Act. The recent NJ Supreme Court decision, In the Matter of the Civil Commitment of JMB, A-79-07, held that the Sexually Violent Predator Act allows judges to order civil commitment based on clear and convincing evidence that the underlying offenses belie conduct "substantially equivalent" to a crime listed in section (a) of the statute.

The governing statute is N.J.S.A. 30:4-27.26 which provides in pertinent part:

"Sexually violent offense" means:

(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S.A. 2C:13-1 criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S.A. 2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or

(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense.

As you can see, section (a) is very clear and lists the offenses which are considered sexually violent. However, section (b) is a "catch-all" provision and can be interpreted in a variety of ways. The NJ Supreme Court stated in this opinion that, "[w]e hold therefore that when faced with an application for civil commitment under subsection (b), a court may consider the circumstances that led to the qualifying prior conviction. When that conduct is substantially equivalent to the sexually violent conduct encompassed by the offenses listed in subsection (a), then that prior conviction may provide the predicate for a commitment application under subsection (b)."

As a result, the court must find that the offense which is not specifically enumerated in section (a) is substantially equivalent to the sexually violent offenses listed in section (a) and, therefore, worthy of civil commitment.

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