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

The principal of Marlboro High School appeared in Millstone Township Court this week on drunk driving charges. The high school principal, who plans to resign in June, is charged with driving while intoxicated (DWI), failure to maintain lane, and driving while intoxicated with a minor in the vehicle. The principal tendered his resignation citing personal reasons on March 22. He is on paid administrative leave until his resignation becomes effective on June 30. For additional information, see the Asbury Park Press article entitled, "Marlboro principal appears in Millstone Township court in DWI case".

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Here is an excerpt from the New Jersey Law Journal regarding State v. Holland which was recently argued and won by the Iler Law Firm in Monmouth County Superior Court in Freehold, New Jersey:

Judges Clash Over Proper Device To Be Used for Taking Alcotest's Temperature

Charles Toutant

04-26-2010

Setting the stage for an appellate showdown, judges in two adjacent counties have come to different conclusions about the type of thermometer that can be used to calibrate the Alcotest in order for its readings to be admissible in drunken driving cases.

A Monmouth County judge ruled on April 16 that the only acceptable temperature probe is the one mentioned in the state Supreme Court's seminal ruling in State v. Chun, 194 N.J. 54 (2008), which found the Alcotest scientifically reliable and authorized its use statewide.

The Chun Court required that Alcotest machines be calibrated every six months by state police technicians, which includes checking the device's temperature sensor for accuracy. At the time, the state used the Ertco-Hart sensor, made by Fluke Corp. of American Fork, Utah. Since then, less-expensive thermometers made by Control Co. of Friendswood, Texas, have been substituted.

But a Mercer County judge last Dec. 17 found that the Chun Court, which adopted a special master's findings that allowed for substitute probes, has implicitly authorized their use, which defense lawyers say is commonplace.

Now, an appeals court is being asked to decide whether substitutions are allowed. After Superior Court Judge Richard English held that they are not, the Monmouth County prosecutor announced he would request an interlocutory appeal and a stay in the interim.

The case, in State v. Holland, 09-069, stemmed from a drunken driving charge in Neptune on June 24, 2009. Nicole Holland's attorney, Alexander Iler, sought to suppress her blood-alcohol content readings of .15 percent and .16 percent, which were far in excess of the legal limit of .08 percent. He cited the use of a Control Corp. thermometer, rather than an Ertco-Hart.

Municipal Judge Mark Apostolou denied the motion but English, sitting in the Law Division, granted it and remanded the case for a new hearing without the Alcotest readings.

English said of the substitution, "I don't see how the Attorney General takes that step without ... going back to the Supreme Court if that's what they have to do. Going back to the Master and saying we need to make a change here."

Special Master Michael King said in his report to the justices that "the Ertco-Hart temperature measuring system or other similar device" be used, but the Court's ruling in Chun mentioned no such substitution, English said. "I don't know why the Supreme Court wouldn't have added that language if that's what they wanted to do," he added.

Chun also stated that each defendant charged based on Alcotest readings is entitled copies of a dozen foundation documents, including an Ertco-Hart Digital Temperature Measuring System Report of Calibration, which Holland did not receive, English noted.

But in the Mercer County case, State v. Azria, 29-2009, Superior Court Judge Mitchel Ostrer denied a defense lawyer's motion to suppress Alcotest results for failure to use the Ertco-Hart. He said the "Supreme Court did not expressly reject the Special Master's acceptance of such similar devices. Therefore, this court does not read the Supreme Court's mention of the Ertco-Hart temperature measuring system to require that system and only that system, particulary absent any stated rationale for such a requirement."

Assistant Monmouth County Prosecutor Monica do Outeiro, representing the state, asserted in court papers that the Supreme Court used the Ertco-Hart name "merely as an identifier" and that both the Control Corp. and Ertco-Hart devices are certified by the National Institute for Standards and Technology.

First Assistant Monmouth County Prosecutor Peter Warshaw says does not know whether substitute thermometers have been used in other cases.

Iler, who heads a Red Bank firm, wants to see the Control Corp. temperature sensor undergo a hearing on the standards for admissibility of scientific evidence as set forth in Frye v. United States, 293. F. 1013 (D.C. Cir. 1923).

"There's no test anywhere from any court or any expert that says the Control Company probe is the equivalent of the Ertco-Hart probe," Iler says. "The Chun order has no language which says any other probe can be substituted. It calls for a specific type of probe."

Evan Levow, a Cherry Hill lawyer who represented the named defendant in Chun , says that getting the court to order a Freyhearing will require a showing that the Control Corp. device may be less reliable than its counterpart.

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An undercover operation led to 19 arrests for soliciting prostitution in Asbury Park this past weekend. According to the Asbury Park Press article, the 19 arrested defendants offered the undercover officer amounts ranging from $10 to $100 in exchange for her performing a sex act. This undercover operation was run on Friday from 11 a.m. to 5 p.m.

Charges for prostitution in New Jersey are governed by N.J.S.A. 2C:34-1 which provides:

§ 2C:34-1. Prostitution and related offenses

a. As used in this section:

(1) "Prostitution" is sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value.

(2) "Sexual activity" includes, but is not limited to, sexual intercourse, including genital-genital, oral-genital, anal-genital, and oral-anal contact, whether between persons of the same or opposite sex; masturbation; touching of the genitals, buttocks, or female breasts; sadistic or masochistic abuse and other deviate sexual relations.

(3) "House of prostitution" is any place where prostitution or promotion of prostitution is regularly carried on by one person under the control, management or supervision of another.

(4) "Promoting prostitution" is:

(a) Owning, controlling, managing, supervising or otherwise keeping, alone or in association with another, a house of prostitution or a prostitution business;

(b) Procuring an inmate for a house of prostitution or place in a house of prostitution for one who would be an inmate;

(c) Encouraging, inducing, or otherwise purposely causing another to become or remain a prostitute;

(d) Soliciting a person to patronize a prostitute;

(e) Procuring a prostitute for a patron;

(f) Transporting a person into or within this State with purpose to promote that person's engaging in prostitution, or procuring or paying for transportation with that purpose; or

(g) Knowingly leasing or otherwise permitting a place controlled by the actor, alone or in association with others, to be regularly used for prostitution or promotion of prostitution, or failure to make a reasonable effort to abate such use by ejecting the tenant, notifying law enforcement authorities, or other legally available means.

b. A person commits an offense if:

(1) The actor engages in prostitution;

(2) The actor promotes prostitution;

(3) The actor knowingly promotes prostitution of a child under 18 whether or not the actor mistakenly believed that the child was 18 years of age or older, even if such mistaken belief was reasonable;

(4) The actor knowingly promotes prostitution of the actor's child, ward, or any other person for whose care the actor is responsible;

(5) The actor compels another to engage in or promote prostitution;

(6) The actor promotes prostitution of the actor's spouse; or

(7) The actor knowingly engages in prostitution with a person under the age of 18, or if the actor enters into or remains in a house of prostitution for the purpose of engaging in sexual activity with a child under the age of 18, or if the actor solicits or requests a child under the age of 18 to engage in sexual activity. It shall be no defense to a prosecution under this paragraph that the actor mistakenly believed that the child was 18 years of age or older, even if such mistaken belief was reasonable.

c. Grading of offenses under subsection b.

(1) An offense under subsection b. constitutes a crime of the second degree if the offense falls within paragraph (3) or (4) of that subsection.

(2) An offense under subsection b. constitutes a crime of the third degree if the offense falls within paragraph (5), (6) or (7) of that subsection.

(3) An offense under paragraph (2) of subsection b. constitutes a crime of the third degree if the conduct falls within subparagraph (a), (b), or (c) of paragraph (4) of subsection a. Otherwise the offense is a crime of the fourth degree.

(4) An offense under subsection b. constitutes a disorderly persons offense if the offense falls within paragraph (1) of that subsection except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree. In addition, where a motor vehicle was used in the commission of any offense under paragraph (1) of subsection b. the court shall suspend for six months the driving privilege of any such offender who has a valid driver's license issued by this State. Upon conviction, the court shall immediately collect the offender's driver's license and shall forward it, along with a report stating the first and last day of the suspension imposed pursuant to this paragraph, to the New Jersey Motor Vehicle Commission.

d. Presumption from living off prostitutes. A person, other than the prostitute or the prostitute's minor child or other legal dependent incapable of self-support, who is supported in whole or substantial part by the proceeds of prostitution is presumed to be knowingly promoting prostitution.

e. It is an affirmative defense to prosecution for a violation of this section that, during the time of the alleged commission of the offense, the defendant was a victim of human trafficking pursuant to section 1 of P.L.2005, c.77.

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It is a lot of fun to try cases but it is also entertaining to see how other trials unfold and the trial techniques of other attorneys around the State of New Jersey. A trial began yesterday at the Monmouth County Superior Court in Freehold, New Jersey which involves a drunk driving crash which took the life of the victim who was riding on a motorcycle. The defendant is charged with vehicular homicide, aggravated manslaughter, eluding police, aggravated assault, and other charges in connection with an October 7, 2007 which resulted in the death of one man. In this case, the defendant was unlicensed and running from the police in a high speed chase when he collided with a man on a motorcycle who did not survive the crash. According to the Asbury Park Press article, the defendant's blood alcohol content (BAC) was .11%. The legal limit in New Jersey is .08%. However, the defense argued that the victim was at fault because the victim was also drunk driving and his blood alcohol contect (BAC) was .145%. The defense argued in their opening statement that the victim could have avoided the accident if he wasn't driving under the influence of alcohol. The assistance prosecutor for Monmouth County showed videotape footage of the accident which apparently effected the jury immensely.

From a defense attorney's perspective, this looks like a very difficult case for the defense to win. Whether or not the other driver was under the influence, the defendant was running from the police at a high rate of speed and crashed into the victim who did not survive. I will be very surprised if the State does not get a guilty verdict from the jury in this case. We will see how this trial turns out.

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The Iler Law Firm made history last week at the Monmouth County Superior Court in Freehold, New Jersey. In State v. Holland, Alexander M. Iler successfully argued a Motion to Suppress the breath test readings based on the use of a substitute temperature probe rather than the temperature probe that was required in the landmark State v. Chun decision.

This case was on appeal from the Neptune City Municipal Court. After the trial judge's denial of our Motion to Suppress the Alcotest breath readings at the Municipal level, our office filed a municipal appeal which was heard at the Monmouth County Superior Court in Freehold. Essentially, our office argued that the breath test readings used in Ms. Holland's case were unreliable because the State used a temperature probe which was manufactured by "Control Company" rather than a temperature probe that was manufactured by "Ertco Hart", the manufacturer that was recognized and approved by the New Jersey Supreme Court in State v. Chun. However, now the State uses a different temperature probe because it is cheaper but the reliability of this substitute temperature probe has never been examined and there has never been any scientific testimony regarding same. Mr. Iler succesfully argued that the breath test readings were unreliable and should be suppressed. The case now goes back to the municipal court with no breath test readings and the future holds either a not guilty or reduced penalties for our client.

Judge Richard W. English, J.S.C. heard the Municipal Appeal on Friday April 16, 2010 and ruled in our favor. Judge English stated on the record that the breath results are not reliable because there has been no scientific testimony whatsoever as to the reliability of the Control Company temperature probe as opposed to the Ertco Hart temperature probe which was examined and approved in State v. Chun. Based on this decision, all breath test readings in which this substitute temperature probe was used are now suspect in Monmouth County and the readings should be suppressed. This is an important decision for drunk driving law throughout New Jersey and is a historic victory for the law firm and for our client.

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The Iler Law Firm has been retained to represent a juvenile in Monmouth County Superior Court in Freehold, New Jersey who has been charged with possession of a firearm at an educational institution. According to the Asbury Park Press article entitled "Cops: NJ teens brought gun on high school bus", three teens were arrested and charged with weapons offenses over the weekend after reports that two Monmouth Regional High School students had brought a gun on a school bus. For additional information, please see the Asbury Park Press article.

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A Manalapan man plead guilty Wednesday to first and third degree drug possession charges with intent to distribute as part of a plea agreement reached with the Monmouth County Prosecutor's Office. In exchange for his guilty plea, the State has agreed to recommend a sentence of "10 with a 3" which essentially means ten (10) years in state prison, and three (3) years of parole ineligibility. This means that the defendant must serve at least three (3) years in state prison before he will be eligible for parole. Superior Court Judge Anthony J. Mellaci, Jr. will sentence the defendant on July 9. 

According to the Asbury Park Press article entitled, "Manalapan man pleads guilty to drug charges", "Manalapan police in 2007 raided [the defendant's] Milton Avenue residence, where they discovered numerous sheets of LSD-laced rice paper with an estimated street value of $42,500 to $127,500. Police also seized more than 4 pounds of marijuana, more than $6,000 cash and more than 7,000 prescription pills — including oxycodone and morphine — during the August 24, 2007, raid."

Based on these facts, I believe the defendant got a very favorable deal from the State. Since he was charged with a first degree drug distribution offense, he could be facing ten (10) to twenty (20) years in jail. However, based on this plea agreement, he must serve three (3) years and then he can be released on parole. I would be interested to know if there were any issues with the search which may have cause the State to offer this favorable plea deal. Essentially, if the State was worried about the ability to get the evidence in at trial based on an unlawful or illegal search without a warrant, then they may have offered this plea agreement to ensure the defendant serves some prison time.

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A Long Branch man who had previously plead guilty to charges of having sexual contact with two young girls has withdrawn his guilty plea based on statements he made to an investigator to the Adult Diagnostic and Treatment Center that he didn't commit the crimes to which he had plead guilty. The Defendant plead guilty to one count of criminal sexual contact and two counts of child endangerment in connection with two young girls from the 1990s. Then, he was interviewed by an investigator from the Adult Diagnostic and Treatment Center and told the investigator that he didn't commit the crimes and the only reason he plead guilty was because he was guaranteed probation and no jail time. As a result, the Judge has postponed the sentencing and the Defendant may withdraw his plea and proceed to trial. For additional information on this story, see the Asbury Park Press article entitled, "Long Branch man denies guilt in sex assault, sentencing placed on hold".

This is an issue I have seen in court many times. Defendants often plead guilty and must provide a factual basis for their guilty plea in court before the Judge. However, many defendants secretly maintain their innocence and only enter a guilty plea based on the plea agreement and the leniency of the penalties involved (for example, to stay out of jail). In this case, the defendant entered his plea but then made inconsistent statements to the investigator as part of the pre-sentence report. This is the report that is provided to a Superior Court judge after a plea is entered so that the Judge is fully aware of the defendant's background, educational history, work history, record, etc. This allows the Judge to be fully informed when sentencing a defendant. Here, the pre-sentence report was inconsistent with the guilty plea placed on the record and, therefore, the plea was withdrawn.

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Atlantic Highlands police have apprehended a suspect who kicked out the rear window of a patrol car vehicle and escaped on foot despite being in handcuffs. The defendant was apprehended on Monday around 4 p.m. in Middletown with two other suspects who were allegedly aiding him with his escape. On Sunday, the defendant and his passenger were stopped on a routine traffic violation in Atlantic Highlands when marijuana was found in their vehicle. As police officers used a K-9 dog to search for drugs in the vehicle, the defendant, who was handcuffed and in the back of a police vehicle, kicked out the side window of the police patrol car and escaped on foot.

According to the Asbury Park press article entitled, "Handcuffed suspect who escaped in Atlantic Highlands is apprehended", "[c]harges against [the defendant] include escape, possession of a controlled dangerous substance with intent to distribute, criminal mischief related to the police car door and window he damaged, and theft related to officers' handcuffs he was wearing when he escaped." The defendant is being held in the Monmouth County Jail in Freehold, New Jersey in lieu of $115,000.00 bail out of Atlantic Highlands and $20,000.00 bail out of Middletown.

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A former deputy mayor of Asbury Park received a 41-month prison sentence on Monday for accepting bribes from an FBI informant. This federal operation, known as "Operation Big Rig", was a federal corruption sting that saw many public officials busted in 2005. In this case, the former deputy mayor accepted a $2,000.00 bribe and a free paving of his driveway from an FBI informant who was posing as a contractor looking for city jobs. The official was convicted of conspiracy to commit extortion, attempted extortion, bribery, making false statements, and attempted witness tampering. The defendant was sentenced in United States District Court by the Honorable Jose L. Linares to 41 months in prison. The defendant must turn himself in by May 31. More than 20 public officials were convicted as a result of Operation Big Rig, a joint investigation into corruption in New Jersey by the FBI and the US Attorney's Office.

For additional information on this story, see the Asbury Park Press article entitled, "Big Rig Finale: 3+ years for ex-official".

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Two Monmouth University students were arrested and charged after police found one of their wallets at the scene of a stolen vehicle in Long Branch and linked them to the crime. The pair have been charged with two counts each of burglary and theft as the teens allegedly stole that vehicle as well as burglarized another vehicle in Long Branch that evening. Then, the teens crashed one of the stolen vehicles on Route 78 in Springfield, New Jersey and allegedly fled the scene of the motor vehicle accident. For additional information, see the Asbury Park press article entitled "Two Monmouth U. students charged with stealing car in Long Branch".

My office represents many Monmouth University students charged with criminal and traffic offenses in Long Branch and Ocean Township. These offenses typically involve underage possession of alcohol, possession of marijuana, or disorderly conduct. However, in this case the charges of burglary and theft are much more serious and these are "indictable criminal charges" and must be handled at the Monmouth County Superior Court in Freehold, New Jersey.

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I am currently on trial at the Monmouth County Superior Court in Freehold, NJ with the former Deputy Mayor of Howell Township who is charged with Theft by Deception and Official Misconduct. For information on the trial, see the Asbury Park Press article entitled, "Ex-official charged with $17G theft from Howell Public Works".

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